Discretion

H.C.J  144/50

 

 

SHEIB

v.

MINISTER OF DEFENCE;

DIRECTOR OF DEPARTMENT OF EDUCATION, MINISTRY OF EDUCATION AND CULTURE; AND

ASHER COHEN, PRINCIPAL OF THE REALI MONTEFIORE SCHOOL

 

 

           

In the Supreme Court sitting as the High Court of Justice

[February 8, 1951]

Before: Olshan J., Cheshin J. and Witkon J.

 

 

 

            Contract - Employment of teacher in private school - Circular by Education Department to principals of schools - Employment made conditional upon consent of Inspector of Secondary Schools - Unauthorised interference by Department of Education in internal affairs of teaching profession – Mandamus - Powers of Competent Authority - Right to receive advice - Competent Authority must itself make final decision.

 

                A teacher, Dr. Sheib, applied to the Principal of the Reali Montefiore School, Haifa, for employment as a teacher and was accepted subject to confirmation by the Department of Education in the Ministry of Education and Culture.

                Pursuant to a general request contained in a circular sent to the principals of all classes of schools by the Director of the Department of Education, that teachers should not be employed save with the consent of the Inspector of Secondary Schools, the acceptance of Dr. Sheib as a teacher had been made conditional by the Principal upon such consent being obtained. Dr. Sheib in due course received a letter from the Principal according to which the Inspector of the Department of Education had written to him that "The Director of the Department of Education has requested me to inform you that the Ministry of Defence objects to the appointment of Dr. Israel Sheib as a teacher." Enquiries by Dr. Sheib elicited that the Principal, acting in accordance with the circular, had approached the Ministry of Education which in turn had consulted the Ministry of Defence, and that that Ministry had objected to his appointment as a teacher because he had urged the use of arms against the Defence Army of Israel and the Government of Israel. There was no evidence that the Director of Education had applied his own mind to the matter.

                Held, (Witkon J. dissenting) that the order nisi should be made absolute. Per Cheshin J. (a) There was nothing to prevent the Director from seeking advice on questions relating to his Ministry from other Ministries and officials, but he was neither directed nor entitled to carry out the will of others in matters in which he was the final arbiter.

                In this case, however, the Director - even assuming that he was authorised by law to object to the employment of Dr. Sheib - had not applied his own mind to the question but had acted solely on the direction of the Ministry of Defence which itself had no authority in the matter. His decision, therefore, was not properly given.

                (b) As the Reali Montefiore School was an entirely private school the only power under which the Director could act was that contained in S. 8 (3) of the Education Ordinance[1], which authorised him in certain cases to dismiss a teacher after the holding of a judicial inquiry. In the present case no such inquiry had been held and even if, as he alleged, Dr. Sheib had begun to work in the school before the objection had been notified - which was not clear - the Director had acted without authority.

                (c) Although the Director of Education had no authority to issue the circular or to object to the employment of Dr. Sheib and the Principal was therefore entitled to disregard these acts, in view of the de facto relationship between schools and the Ministry of Education, and having regard to the nature of a writ of mandamus, the court should make the order nisi absolute and set aside the notice of objection.

                Per Olshan J. Even if the circular were to be regarded as a simple request, in this case it constituted an interference in the internal affairs of the teaching profession without lawful authority.

                Per Witkon J. Even if an order setting aside the Inspector's opposition to the employment of Dr. Sheib as a teacher were to be made, such order would not operate as a consent the giving of which was made a condition (albeit unlawful) to the employment of Dr. Sheib. Notwithstanding, therefore, that the Director had exceeded his authority, the order nisi should be discharged.

           

Israel cases referred to:

(1)   H.C. 1/49 - Solomon Shlomo Bejerano and another v. Minister of Police and others, (1948/49), 1 P.E. 121.

(2)   H.C. 9/49 -Yehuda Blau v. Yitzhak Gruenbaum, Minister of Interior and others, (1948/49), 1 P. E. 225.

(3)   H.C. 22/49 - Michael Sabo v. Military Governor, Jaffa, (1949), g P.D. 701.

(4)   H.C. 47/49 - Matossian v. Dr. A. Bergman, District Commissioner of Jerunsalem and others, (1950), 4 P.D. 199.

(5)   H.C. 108/49 - Bouchman and Shoulyan v. Ya'acov Bergman. District Commissioner of Haifa, (1950). 3 P.D. 182.

 

English case referred to:

(6)        R. v. Barnstaple Justices, (1937) 4 All E.R. 263.

 

Weinshall, for the petitioner.

H. H. Cohn, Attorney-General, for the second respondent.

 

            CHESHIN J. This is the return to an order nisi calling upon the second respondent - the Director of the Department of Education in the Ministry of Education and Culture - to show cause why he should not withdraw his opposition to the employment of the petitioner as a teacher in the institution conducted by the third respondent.

 

2. The facts disclosed in the affidavits of the petitioner and the second respondent are as follows:

 

            The petitioner, Dr. Israel Sheib, a teacher by profession, has taught in various schools both in this country and abroad. He acquired his general education and professional qualifications in the Rabbinical Seminary of Vienna and in the Faculty of Philosophy in the University of that city. Before the outbreak of the Second World War the petitioner was a teacher in the Hebrew Teachers College of Vilna and after his immigration to Israel, in 1941, he was accepted as a teacher in the Ben-Yehuda Gymnasium in Tel Aviv. In April, 1944, he was arrested by the British Criminal Investigation Department on suspicion of underground activity, and was sent to the detention camp at Latrun. After two years, however, he managed to escape from the camp, and from then until the conclusion of the Mandate and the evacuation of the British forces from the country he continued to engage in activity in the "Lechi"1 organization which was operating underground at that time. When the underground movements were disbanded after the establishment of the State, the petitioner desired to resume his occupation as a teacher, and he approached various educational institutions for this purpose. His efforts, however, were of no avail - a fact attributed by him to his underground activity in the past and his political opinions which stood as an obstacle in his way. The petitioner, however, did not despair but continued his efforts to obtain employment as a teacher, and during the school year, 1950/51, he managed to secure a contract with the third respondent, the Principal of the Reali Montefiore School in Tel Aviv. This contract, however, was conditional upon confirmation by the Department of Education of the Ministry of Education and Culture and it would appear that the third respondent approached the Ministry in order to receive the confirmation required. On September 17, 1950, the petitioner received a letter in the following terms from the Principal of the Montefiore School : -

           

"I regret to inform you that according to a letter dated September 8, 1950, which I have received from the Department of Education, you may not be accepted as a teacher in our institution. A copy of the letter referred to is enclosed herewith."

 

            The copy of the letter referred to from the Department of Education, reads:

           

 

STATE OF ISRAEL

Ministry of Education and Culture,

Jerusalem

Department of Education.

September 8, 1950

The Directorate of

the Montefiore School,

Tel Aviv.

 

Dear Sir

            The Director of the Department of Education has requested me to inform you that the Ministry of Defence objects to the appointment of Dr. Israel Sheib as a teacher. I conveyed this information to the secretary of the school yesterday.

                                                                                   Yours faithfully,

                                                                                   (Sgd.)

                                                                                   Dr. M. Hendel

                                                                                   Inspector of

                                                                                   Secondary Schools."

           

            According to the version of the petitioner, this letter of the Inspector of Secondary Schools arrived two weeks after the petitioner had already started teaching at the Montefiore School, but this version is specifically denied by the second respondent. Since neither the petitioner nor the Inspector was cross-examined, I cannot decide this point, and must deal with the matter on the basis that the contract between the petitioner and the third respondent was cancelled as a result of the objection of the second respondent, before the petitioner started working at the school.

            In view of this situation, the petitioner addressed a letter dated October 23, 1950 to the first respondent, the Minister of Defence, and to the Minister of Education and Culture - who was not joined as a party to these proceedings - requesting them to inform him of the reasons and grounds upon which he had been disqualified as a teacher. No reply to this letter was received from the Ministry of Education and Culture, but the Minister of Defence replied as follows:

           

STATE 0F ISRAEL

 

            Jerusalem, November 25, 1950

Dr. Israel Sheib,

124, Dizengoff Street,

Tel Aviv.

           

Dear Sir,

            Your letter of October 23, 1950.

            The Ministry of Defence objected to your appointment as a teacher because in your book and your newspaper you urge the use of arms against the Defence Army of Israel and the Government of Israel in cases where this seems to you desirable.

           

                                                                                 Yours faithfully,

                                                                                 David Ben-Gurion

                                                                                 Minister of Defence."

           

            This then is the background which led to the issue of the order nisi against the second respondent (though not against the other respondent, to whom only copies of the papers were sent by order of the court). With this background in mind, and in the light of the facts which I have already cited together with some other facts which will be mentioned later, the court must now decide upon the application of the petitioner.

           

3. The nature of the petitioner's complaint - as was emphasised by his counsel at the beginning of his argument - is that the petitioner is being persecuted because of his personal opinions and his political activity. I take the liberty of expressing on this occasion and from this Bench my wish and my hope which, I am sure, are shared by thousands of the citizens of this State, that it will not be long before the Knesset passes a Law imposing a strict prohibition on teachers and educators and all those who are concerned with education, in theory or in practice, from indulging openly or secretly, and whether within a school or outside school, in politics, or in any form of occupation which has a political flavour. The education of our children is a sacred task which may not be sullied by alien influences. Those who engage in politics and those who engage in education must remain within their own respective domains and one should not trespass on the field of the other. And if a teacher and educator wishes to enter the cauldron of politics, let him cast aside the teacher's robe. and engage in politics to his heart's content. But let him not enter a school again, and poison the minds of his pupils with the violence of politics and party differences. To our regret, however, no such Law has yet been placed upon the statute book of our State, so all who wish to combine teaching and politics may do so and no one can stand in their way. Since this is so, the one may not be prevented from doing what the other is permitted to do; and a teacher - or one who is preparing himself to be a teacher - is not to be disqualified merely because of his political opinions or activity.

 

4. It was said that no complaint can be made against the second respondent for two reasons: first, that the third respondent, the Principal of the school, and the petitioner both made the acceptance of the petitioner as a teacher in the school conditional upon the securing of the prior confirmation of a third person - in this case the second respondent - and if that third person refuse to give the required confirmation, what recourse can the petitioner have against him? Will the court compel him to confirm the appointment just in order to give effect to the contractual relationship between the parties to the agreement - he himself being a stranger to them and they being strangers to him? It was argued in the second place that when the second respondent was asked his opinion about the petitioner, he was under no "legal duty . . . to give the Reali Montefiore School . . . a dishonest reply". The meaning of these words - which are quoted from the affidavit of the second respondent - as I understand them, is this: the second respondent had made up his mind to oppose the employment of the petitioner as a teacher. but the law imposed on him no obligation to reply to the question of the Principal of the Montefiore School as to the reasons for his objection to such employment, and since that is so the court will not order him to give such a reply contrary to his opinion and his conscience.

 

5. These reasons appear to be two, but are in fact only one. I, for my part, would incline to accept them as sound and decide against the petitioner had the third respondent in fact acted on his own initiative and opinion and if without any pressure from outside he had approached the second respondent and asked his opinion of the petitioner. Had this been the case I would have said that he sought good advice from the second respondent and the confirmation of a man who was an expert. The approach of the third respondent to the second respondent, however, was not a mere chance approach, nor was it made for the purpose of seeking advice - it was made in consequence of something which had happened beforehand. What had taken place was as follows: on June 13, 1950, the second respondent - as appears from his own affidavit - had addressed a circular to the directors of secondary schools in the country in which he requested them not to employ teachers in their schools without the consent of the Government Inspector of Secondary Schools. This Inspector is the assistant and principal aide of the second respondent. The legal effect of this circular, and the manner in which the third respondent was obliged or able to perform his own duties - had he wished to do so - in the light of its provisions, are questions with which we shall deal later. At this stage, and for the purpose of the twofold argument to which I have referred, it is sufficient to point out that a condition which a man lays down himself has not the same effect as a condition which he lays down upon the orders or suggestions of a higher authority. In the first case he will express his own untrammeled will, while in the second case he will give effect to the wishes of his superiors. From this point of view, considerable interest attaches to the letter of the Inspector of Secondary Schools to the third respondent, and the third respondent's letter to the petitioner, for these two letters are apt to throw a good deal of light on the internal relationship between the schools - even private schools - and the Department of Education and those who stand at its head, as well as upon the nature of the condition laid down in the agreement between the third respondent and the petitioner. It should be noted that the Inspector does not say in his letter that the second respondent - in accordance with his own opinion or upon the advice of the Ministry of Defence - is not prepared to confirm the contract between the third respondent and the petitioner, but expresses specific and clear objection to the employment of the petitioner. The letter does not merely express an absence of a friendly attitude to the petitioner, but takes up a definitely hostile attitude. And how did the third respondent understand the attitude of the second respondent? The Principal does not write, in his letter to the petitioner, that the contract is cancelled because of non-receipt of confirmation or words to that effect, but that in accordance with the letter of the Department of Education the petitioner may not be accepted as a teacher. In short, what was designed - as has been submitted to us - to be just good advice, became opposition; the opposition became a serious prohibition; and it was this prohibition, real or assumed - which led to the suspension, or, to put it more accurately, to the non-acceptance of the petitioner as a teacher. The non-fulfillment of the contract between the petitioner and the third respondent was not, therefore, the fruit of the third respondent's free choice, but the product of compulsion which was imposed upon them by a person- a public official - upon whom depended the fulfillment or non-fulfillment of the condition referred to. It cannot be said, moreover, as was submitted before us, that this person expressed only his own opinion, and since the law imposes no duty upon him, he cannot be compelled to pervert his opinion, and the petitioner, therefore, has no recourse against him.

 

6. It was also submitted that the second respondent acted according to law, and that the court will therefore not interfere. The justification of his action is expressed by the second respondent in his affidavit as follows:

 

"In view of the finding of the Minister of Defence and his Ministry - who are responsible for matters relating to the defence of the State - that the petitioner is not suitable to be a teacher, I, as the person responsible for the educational organization in the State am obliged to do everything I can to prevent the petitioner from being accepted as a teacher in the Reali Montefiore School or in any other school in the State."

           

            From this language we draw conclusions : first, that it was the Minister of Defence and his Ministry who disqualified the petitioner from being a teacher in the schools of the country; secondly, that the second respondent regarded the decision of disqualification referred to as a decision binding upon him. It seems to me, however, with all respect to the second respondent, that even if we assume that the matter in question falls within the scope of his authority - a question to which we shall return later - we are confronted here with a confusion of issues and an overstepping of jurisdiction on the part of certain government authorities.

 

7. In my opinion there was no reason for the petitioner to concern himself with the first respondent and join him as a party to these proceedings and the second respondent's reliance upon this powerful support in order to justify his actions will not avail him. The respect due to the Minister of Defence is not open to question and there is no one in the State who underestimates the onerous nature of his duties and the extent of his responsibilities. Matters of education, however, were not entrusted to him. nor do they fall within the limits of his authority. It was to deal with such matters that the second respondent was appointed, and the duty of dealing with them has been imposed upon him, and upon him alone. It is obvious that the division of the work of government between various ministries and branches requires frequent consultation between the ministries, to ensure efficiency of work and coordination of activity. From this point of view there is, of course, nothing to prevent the Director of the Department of Education, in the same way as any other public official in the State, from seeking advice on questions relating to his ministry from other ministries and officials, so that those engaged in one field of activity way learn from those acting in another field. He is not directed, however, nor is he entitled, to carry out the will of others in matters that fall within the jurisdiction of his own ministry. In such matters he is the final arbiter, and when he reaches a decision the decision must be his own decision and not the result of an instruction which he has received from another. He is neither obliged nor permitted to do an act suggested by someone else, unless he gave his own opinion on the matter and made the suggestion his own, and then too the considerations which weighed with him must he considerations of education and not extraneous considerations. In this case it is admitted by the second respondent that it was not he but the Minister of Defence who decided that the petitioner is not suitable to be a teacher in Israel. Had he said. for example, that on the basis of the decision of the Minister of Defence he, the second respondent, is also afraid that the petitioner may incite and mislead the children in Israel; or that the fact that the Minister of Defence regards the petitioner as dangerous from the point of view of the security of the State disqualifies the petitioner in the principal's own eyes, too, from being a teacher; had the respondent made this the ground of his objection to the appointment of the petitioner as a teacher. J would not have found any fault with his action, for then I should have said that his opposition was based upon educational considerations. But the second respondent neither said this nor acted in this way. He carried out the will of the first respondent; and in the same way as the first respondent was not competent to give the decision, the second respondent was not entitled to give effect to it.

 

8. It has been submitted to us, however, that considerations of security are to be regarded differently, that the petitioner is a dangerous person, that he speaks against the Israel army and undermines the security of the State. The reply to this submission would seem to be that such a man is not only unsuitable to act as a teacher, but should be kept out of an office, a shop, a workshop, kept off the streets and not allowed to mix even with adult persons. Not only is it permissible to take away his livelihood, but also to deprive him of his personal liberty. Anyone who preaches today that one should take up arms against the Defence Army of Israel - the most precious possession which has come into our hands since the establishment of the State - or should take up arms against the Government of Israel, robs the soul of the people and must pay the penalty for his actions and his deeds. Our State, however, is based upon the rule of law and not upon the rule of individuals. And if the censorship has passed over in silence the publication of the petitioner and has not prevented him - strange as it may seem - from preaching rebellion, law still rules in Israel. The authorities will take such action against the petitioner as the law allows and he will then, at least, enjoy the right given to every citizen in the State, the basic right of a man to defend himself before the courts. If the opinions of a citizen are rejected, that is not to say that his life is at the free disposal of anyone; the ways of earning a living are not closed before him, nor is his life to be embittered by administrative action. This court has already dealt with this subject in Bejerano v. Minister of Police, (1) :

 

"When a person petitions this court for an order directing a public official to do a particular act . . . the petitioner must show that there is some law according to which the public official is under a duty to do that which is demanded of him. This principle will not, in our opinion, apply where a person seeks - not the performance of a particular act, but the restraining of the performance of an act which injures him, that is to say, a negative order. In such a case it is for the petitioner to show that he has the right to do that which he seeks to do, and, as against this, it is for the public official to prove that his action, intended to prevent the exercise of that right, is lawful. In other words, where a petitioner complains that a public official  prevents him from doing a particular act, it is not for the petitioner to prove the existence of a law which Imposes upon the public official the duty of permitting him to do the act. On the contrary, it is for the public official to prove that there is some justification for the prohibition which he seeks to impose." (ibid. page 124, (1).)

           

            And in Blau v. Minister of Interior, (2) the court following Bejerano's case, (1), repeated the same principle in these words: -

           

"Where the petitioner asks this court to issue a writ of mandamus against the authorities, he will not succeed in his application unless he shows that the law imposes upon the authorities a duty to do what is demanded of them. If, however, the authorities do an act which injures the rights of the individual, it is for the authorities to show that the law gives them the right to do that act." (see Bejerano's case, (1) at page 228).

           

9. It should be pointed out at this stage that in spite of the clear intimation by the Minister of Defence of the reason for his objection to the petitioner, that is to say, his unlawful activities, and in spite of the indication of the sources in which the language objected to, which was used by the petitioner, is to be found, no article or copy of an article written by the petitioner, reflecting these inciting opinions, has been brought before us, either in the affidavit of the second respondent or as an annexure thereto. I do not mean to say that this fact enables us to review the conclusion of the Minister of Defence. We are not competent to do so. As is well known, however, a writ of mandamus is designed to serve as a means of enforcing compliance with the law and not as an instrument to help in its evasion. It is for this reason that a writ of mandamus will not issue where it appears that it will lead to unlawful acts, or that it is contrary to the public interest. Similarly no relief is granted to a person who approaches this court with unclean hands. If, therefore, any proof at all had been produced before us that the petitioner by his words and articles had in fact broken the law, we should have said that it was these acts on his part which had caused the difficulties in which he has now found himself, and that it is no duty of ours to give him assistance. This, however, as I have said, has not been proved or even argued. It is true that counsel for the second respondent, in the course of his argument, did say that the petitioner was at one time a member of "Lechi"-a fact admitted by the petitioner, as I have said, in his fact words to this court - and submitted that it is a legal presumption that the petitioner has continued to remain a member of "Lechi" so long as it has not been proved to the contrary. These matters, however, are not relevant to the argument, for neither the Minister of Defence in his letter to the petitioner nor the second respondent in his affidavit. based their objections to the petitioner on his past membership of the "Lechi" organization. It is too late at this stage to put forward this submission.

 

10. It is appropriate at this point to refer to section 8 of the Education Ordinance, which was enacted to meet a situation similar - though not in every particular - to the situation with which we now have to deal.

 

            According to that section the Director may require the dismissal of any teacher, whether in a public or private school, or in an assisted or unassisted school. Before he may do so, however, a judicial enquiry must be conducted by a judge or magistrate appointed for the purpose and it must first be shown, to the satisfaction of the Minister of Education, that the teacher imparted teaching of a seditious or disloyal character. It is true that this section only applies to a teacher who has already entered upon his duties. And we are dealing with the case of a person who has not yet started working as a teacher. We must also not disregard the important first, however, that the institution of the third respondent is not a government institution, but an entirely private one. The Government is perhaps entitled to employ in State institutions only those persons of whom it approves and may refuse to employ persons whose opinions do not conform with its own views. I say "perhaps" since this question, in its concrete form, does not arise here. The second respondent admits that for the reason stated above - and correctly so - s. 8(3) has not yet been applied to the petitioner, and the question that now arises is as follows: Whence did the second respondent derive the authority to send to the principals of school a circular of the nature of the one sent to the third respondent? This brings us to a subject of which some indication has been given in my previous remarks.

           

11. The second respondent acts under the provisions of the Education Ordinance and the Education Rules, in which the rights and powers of the Director of Education in his relationship with schools, principals, teachers and local authorities are set out in detail. There is, however, no mention in the Ordinance or Rules referred to of any right or power to demand of the principals of schools, government or private, not to employ a teacher in their schools save with his prior consent. It seems to me, therefore, that from this point of view the second respondent exceeded his authority, and that the circular which he sent to the principals of schools as well as the notice of his objection to the employment of the petitioner which followed that circular, have no validity. They constitute an interference - albeit with the good, though mistaken, intention of fulfilling a public duty - with the right of citizens to enter freely into contracts of service. This interference is legally objectionable for two reasons. In the first place, it creates the impression that the Minister of Defence, and not the second respondent, is the final arbiter in the question of who is and who is not suitable to be a teacher - in any event it would appear that that was the case here. In the second place, the petitioner was administratively disqualified from being a teacher without having been given the opportunity of appearing before a tribunal or public board in order to defend himself against his accusers. (No board exists because the legislature did not think of establishing one). A procedure such as this is not permissible.

 

12. Now there arises the important question whether this court is obliged, or even competent, to direct the second respondent to cancel the notification of objection which he sent to the third respondent in regard to the petitioner. J must confess that at first I found great difficulty in deciding this question and found myself confronted with what appeared to be a twofold difficulty. In the first place, so I thought, what is the necessity of formally; canceling the notice of objection? This notice, so it would seem. is in any case void since it was sent without authority. The third respondent, therefore, may regard it as a worthless piece of paper ; and if he does not wish to, will not be bound to act in accordance with its terms. In the second place, since the law did not authorise the second respondent to send notices of objection such as these, it is obvious that it did not concern itself with this problem at the outset and imposed no duty upon the second respondent, nor conferred upon him the right, to cancel such notices. Will this court assume authority in these circumstances to direct the second respondent to cancel the notice of objection which he issued in this case? In doing so, under what principle would it be acting ?

 

13. I said that I found difficulty in deciding at first, but I have eventually reached the conclusion that it would be proper in a case of this kind for the court to act and issue the writ of mandamus. It is true that principals of schools were fully entitled to regard the circular - and the third respondent was also entitled to regard the notice of objection - of the second respondent as invalid and were entitled not to act in accordance therewith. Had they done so there could have been no complaint against them, and it is unnecessary to add that they would not have been penalised for failure to obey instructions of the competent authority. We must not, however, disregard the internal relationship between the second respondent and the principals of schools. He is the Director of the Department of Education of the Government, and they are the principals of educational institutions in the State. There are many bonds which bind the schools to the Ministry of Education. The schools - even private and non-subsidised - are dependent upon the goodwill and often also upon the help of officials of the Ministry of Education in matters of guidance, advice, recommendations, and similar matters. I do not mean to say that if another public official, who was a complete stranger to matters of education, expressed opinions and gave decisions in maters of education, this court could not interfere with his conclusions and decisions. This question does not arise before us in these proceedings and does not demand an immediate solution. In the present case, however, it is beyond all doubt that because of the relationship between schools and the Minister of Education the second respondent exercises indirectly a most powerful influence over principals of schools, even in regard to matters which are beyond the scope of his limited authority, and that such directors will not always see their way clear to disregard such instructions even if they are entitled to do so. A very real piece of evidence which shows that this is so is the fact that, in the case before us, the third respondent actually applied to the second respondent for instructions, although he was under no obligation to do so. In these circumstances, in order to avoid the doing of injustice and with the object of ensuring that the bounds of the authority of public servants are adhered to, this court will certainly express its opinion in the matter.

 

14. The answer to the second difficulty, namely, how this court can order a public officer to do something which he is under no obligation to do, may he gathered from the very nature of a writ of mandamus. There are three elements in such a writ, namely:

 

(1)   a clear legal right in the petitioner to receive the relief which he claims;

(2)   a public duty upon the officer to do what the petitioner asks the court to compel him to do;

(3)   the absence of an alternative remedy.

 

            The petitioner in the case before us, as has been said in his affidavit which has not been denied by the second respondent, has fulfilled the requirements of the Education Ordinance which qualify a person to follow the occupation of a teacher. In the light of what was said in Bejerano v. Minister of Police, (1), the petitioner has acquired a legal right to engage in the occupation of a teacher and to insist that public officers will not interfere with him in earning his living by carrying on his profession. The second respondent acted under the completely mistaken impression that he had the right to direct the third respondent at the outset not to employ a teacher otherwise than with his consent. and to object to the candidature of the petitioner thereafter. These acts, which were done without authority, are not only calculated to prejudice a particular class of citizens but actually do prejudice one of them, namely, the petitioner. In the circumstances such as exist in this case, a public officer has failed in his public duty and the officer must make good the harm done by setting aside the act which he did without authority. The mandamus to he issued by this court will direct the second respondent to fulfil this public duty towards the petitioner. So far as the third element referred to is concerned, it is not disputed that the petitioner has no alternative remedy. In my opinion it would be appropriate in these circumstances that a writ of mandamus be issued.

 

15. The court cannot of course direct the second respondent to cancel the circular which he sent to principals of schools, including the third respondent, since no prayer for such relief has been included in the application of the petitioner. The reason for this is that the petitioner had no knowledge of this circular when he filed his application. It only came to his knowledge from the affidavit of the second respondent. The notice of objection, being as it is a natural and necessary consequence of the circular, cannot remain in force, and the writ of mandamus will apply to it alone. It is clear that the setting aside of the notice of objection of the second respondent does not mean the giving of consent to the employment of the petitioner as a teacher in the educational institution of the third respondent. The setting aside of the notice of objection is based on the fact that the issue of that notice was from its inception an act which fell beyond the authority of the second respondent. That is all, and no more.

 

OLSHAN J. It is my opinion that were we to refuse to accede to the application of the petitioner, we would be a party to turning the principle of "the rule of law", which prevails in our State, into a sham. The fundamental meaning of that principle is that if there are to be restrictions on the liberty of the individual it is because such restrictions are essential for preserving the real liberty of the subject or the public interest. These restrictions must be laid down by the law, that is to say, by society which reflects its opinion in the laws which are enacted by the parliament which represents it, and not by the executive authority, whose duty it is merely to carry into effect these restrictions, in accordance with such laws.

 

            The rule inherent in this principle shows that the rights of the individual may not be restricted or removed by an official or Minister just because he thinks, perhaps correctly, that to do so will be of benefit to the State. It is for him to satisfy the legislature that such restrictions are essential or necessary, and it is only after the legislature has authorised them that the official or Minister may carry them into effect.

           

            It is true that in our time, with the increased intervention of the State in the life of the individual, the task of the legislature has become more difficult and complex. It is not always easy to foresee every circumstance which may arise and to meet it by a reference to it in the statute. A tendency therefore exists to confer powers of subordinate legislation, in such statutes, upon the administrative authority, or of leaving the decision in each case to the discretion of the administrative authority in the light of the general principle laid down by the legislature in the statute. When the legislature leaves the decision as to the imposition of restrictions to the discretion of the executive authority, it follows that the legislature, while laying down the general principle, does not concern itself with the detailed circumstances in which the restrictions should be imposed, but leaves the determination of those circumstances to the discretion of the executive authority. This tendency, which is increasing, presents a serious obstacle to the application of the principle of the "rule of law". It does not, however, destroy it completely, for the transfer of such power in a particular statute to the executive authority still does not enable that authority to act as it pleases, even in regard to areas not covered by the statute. In other words the executive authority is not free to impose restrictions just because it regards them as desirable, unless the statute which deals with the particular matter gives it the power to impose such restrictions if it deems them necessary. If a power such as this is not included in a particular statute, it is for the executive authority to satisfy and induce the legislature to confer such power upon it. For so long, however, as such power is not accorded to the authority, it may not assume such power itself. Were the position otherwise, the whole principle of the "rule of law", one of the guarantees of democratic rule in the State, would be turned into a meaningless concept, and all the statutes which deal, for example, with the regulation of the employment of citizens in various professions, would become of secondary importance.

 

            Let us take as an example the Medical Practitioners' Ordinance. That Ordinance lays down a number of conditions for the issue to a person of a license to practice the profession of medicine. If the Minister of Health, without being authorised by the Ordinance so to do, were to instruct private hospitals not to employ doctors without his prior consent, he would thereby, in fact, add a further condition to those laid down in the Ordinance for the employment of doctors in their profession - a condition not laid down by the legislature. The citizen, therefore, although he fulfilled the requirements of the law, would find himself dependent upon the favour of the Minister.

           

            Returning to the matter before us, it is not disputed that the petitioner is qualified to engage in teaching in accordance with the Education Ordinance; and there is no provision in that Ordinance by which his right to act as a teacher in a private school is made conditional upon the confirmation or consent of the Minister of Education or of the second respondent. This case is not concerned with a government school, or a school subsidised by the Government, in regard to which different considerations may perhaps apply. Nothing in the Ordinance suggests that there is a right in the Minister of Education or any other Minister to impose a restriction such as this, s. 8(3) of the Education Ordinance is the only section which confers the right upon the Minister of Education to intervene in the question of employment of a teacher by an educational institution and to demand his dismissal; and even this section applies only if such teacher has been proved, as a result of a judicial equiry, to be guilty of a criminal act or to have been engaged in incitement against the State.

 

            The question before us is not whether it would be a good or a bad thing if the petitioner were to be a teacher at the Montefiore School in Tel Aviv. The complaint of the petitioner is in fact confined to a prayer for an order directing the second respondent to cancel his objection to the employment by the third respondent of the petitioner as a teacher. Counsel for the petitioner rightly urged upon us that, before he need deal with the prayer, it was incumbent upon the Attorney-General to show on the basis of which law, or by what legal authority, a restriction has been imposed upon him, as upon all other teachers, preventing his appointment as a teacher in any institution, even a private institution, save with the consent of the Minister of Education. The learned Attorney-General was unable to direct our attention to any such law or authority.

           

            It is very possible that if a person "urges the use of arms against the Defence Army of Israel and against the Government of Israel" he should be disqualified from teaching in any school in the State. It is for the Knesset, however, to express its opinion on the matter, and should it decide that such a disqualification should be introduced, it will also direct by what method it is to be determined whether a particular person has in fact urged the use of force, and who is authorised to make such a finding.

           

2. It is quite possible that a person who approaches us with a complaint against the authorities that they have placed obstacles in his path in connection with his employment as a teacher, will not obtain the relief which he seeks if it is shown that he urges the use of violence against the Defence Army of Israel and against the Government of Israel, because the granting of relief by this court in cases of that kind is a matter within its discretion. The only material before us, however, on this point, is the letter of the Minister of Defence to the petitioner in which he makes this charge against him, and the reaction of the petitioner is to be found in paragraph 18 of his affidavit in which he says : "more particularly as the allegations contained in annexure E are not based on fact". I am, moreover, of the opinion that it is of far greater benefit to the community that the principle of "the rule of law" should be strictly maintained in this case than that we should refuse to accede to the application of the petitioner because of the suspicion that he urges the use of violence against the army If, after all, this suspicion is well-founded, the petitioner is guilty of a criminal offence and the authorities are free to deal with him as with any other offender.

 

3. The learned Attorney-General attempted to present this case as one of the utmost simplicity. With the consent of the petitioner, he submitted, a condition was introduced into the contract between him and the third respondent that his acceptance as a teacher in the school would be dependent upon the consent of the Ministry of Education. Because of this condition the second respondent was requested to furnish the consent required, that is to say, to express his opinion. In reply to this request the second respondent furnished to the third respondent the opinion of the Minister of Defence that the petitioner was unsuitable to act as a teacher. Even if this should be interpreted as a refusal to give the confirmation requested, the Attorney-General submitted that it involves no unlawful act or one in excess of authority.

 

            Were it possible to regard the contract between the petitioner and the third respondent as the starting point of this affair, I would not hesitate to recognize the correctness of the submission of the learned Attorney-General. This argument, however, overlooks the contents of paragraph 8 of the petitioner's affidavit, that is to say, that the condition referred to was introduced into the contract by the third respondent "pursuant to instructions". Some support for this allegation is to be found in paragraph 1 of the second respondent's affidavit in which it is said that in the circular which he sent to the principals of secondary schools in the country in 1950 he, the second respondent, requested them "not to employ teachers in their schools save after the receipt of the consent of the Inspector of Secondary Schools."

           

4. It is clear that the condition referred to was introduced into the contract because of the circular which was sent by the second respondent to the principals of schools. That this is so I conclude from what is said in paragraph 8 of the petitioner's affidavit which was not specifically denied by the second respondent, but who did not admit it because he had no knowledge of it (see paragraph c (2) of his affidavit). The second respondent did not annex to his affidavit the circular which he sent and we cannot examine the language of the "request" which is included in the circular with a view to ascertaining whether it is the language of a mere request, or an instruction which has the form of a request. For the words "you are requested" may sometimes be interpreted as "you are required". The second respondent was also not summoned for cross-examination on his affidavit.

 

            This is important, for I would not think it possible to lay down a general principle that a Government Ministry is prohibited from addressing requests to the public or to particular institutions unless specific authority therefore exists in the law.

 

            I have no doubt that if the meaning of the circular referred to is to instruct owners of private schools not to accept teachers without the authority of the Ministry of Education, it was issued without authority, lacks all legal validity, and is of no binding force.

           

            Even if we regard the circular, however, as a simple request, I cannot escape the conclusion that in the particular case before us the sending of the circular constituted an interference in the internal affairs of the teaching profession, or a portion of it, without lawful authority. There is no doubt that in sending the circular the second respondent had reason to believe or to expect that the principals of schools would accede to his request. As a result, a new situation was created for the teaching profession or a portion of it. It is not sufficient that teachers possess the qualifications required according to the Education Ordinance, but there is now an additional condition - the confirmation of the Ministry of Education. Not only this, but the Ministry of Education has also failed to set up some body to which a teacher may turn and defend himself against a refusal of the Ministry to confirm his appointment as a teacher. We have not been told that the matters to be taken into account in giving the confirmation were set out in the circular. It follows that the second respondent arrogated to himself the power of preventing the appointment of teachers by his own fiat, without any right of redress. We do not doubt the good intentions of the second respondent and that he did not issue the circular with the object of exercising authority. Such a circular, however, cannot afford authority for discriminating against a teacher or limiting his rights, in the absence of legal power to do so. Bad the condition relating to the giving of authority by the Ministry of Education been introduced on the initiative of the principal of the school, we should not have been able to interfere. Since, however, the necessity for this consent was created on the initiative of the Ministry of Education, we must decide that it was issued without authority.

           

5. As I have said, were I able to regard the "reply" sent to the third respondent in regard to the petitioner as an independent link and not as a consequence of the circular, I should not have been able to find a legal basis for the complaint of the petitioner in this court. In order to clarify my approach to the problem before us, I also wish to point out that had I not found that the circular was legally ineffective by reason of its having been issued without lawful authority, I am not sure that it would have been possible to set aside the letter because of its contents. It is true that had the law conferred upon the second respondent the power of disqualifying teachers at his discretion, he would have had to act according to his discretion and not on instructions of the Minister or any other person. This does not prevent him from consulting or taking the opinion of another person, and accepting that opinion so far as it appeals to him. If the matter is one which involves the question of security, I am prepared to go even further. Had it been known to the second respondent that the Minister of Defence opposes the appointment of the petitioner as a teacher for reasons of security and that the facts forming the basis of such reasons are secret in character, the second respondent might have given weight to the very fact of the opposition of the Minister of Defence, even if the reasons referred to were not clear to him.

 

            In my opinion, however, all these problems have no relevance here, since in Day view the circular was issued without authority.

           

6. The prayer of the petitioner before us was for an order against the second respondent to show cause why he should not withdraw his opposition to the acceptance of the petitioner as a teacher in the institution of the third respondent.

 

            We cannot order the second respondent to take back the letter sent to the third respondent, since this letter was sent in reply to a question of the third respondent and merely stated that the Minister of Defence opposes the appointment of the petitioner as a teacher. This fact is correct, as appears from exhibit "E" which was filed by the petitioner. We also cannot order the second respondent to "withdraw his opposition", if by withdrawing his opposition he will be taken to have assented, and this court cannot order the second respondent to give his consent to the appointment of the petitioner as a teacher by the third respondent. As far as this letter is a consequence of the circular referred to, and constitutes an objection to the employment of the petitioner by the third respondent, I think that we should follow the view of the majority in Sabo v. Military Governor, Jaffa, (3), and decide that the objection of the second respondent has no legal authority, and that he must therefore refrain from interfering in this matter. In this sense we should make the order nisi absolute.

 

WITKON J. The petitioner is a teacher by profession and has been a teacher in Israel and elsewhere. It is alleged in the petition - and is not denied by the respondent - that the petitioner came to Israel in 1941, and engaged in teaching in Tel Aviv until he was arrested by the British police in April, 1944, on suspicion of belonging to the underground movement of the Freedom Fighters of Israel. He remained in custody in Latrun for two years until he escaped and continued to work in the underground movement.

 

2. The petitioner alleged further in his affidavit that after the establishment of the State he decided to return to teaching and applied to a number of institutions for a post. He was confronted with difficulties the root of which - as later because evident to him - was to be found in the fact that the Department of Education refused to confirm his employment as a teacher. The petitioner communicated with the third respondent, the principal of the Reali Montefiore School in Tel Aviv, in order to secure employment for the 1951 school year, but the principal made the employment of the petitioner as a teacher conditional upon confirmation by the Department of Education. It would appear that the petitioner started working before receipt of the confirmation, bat his work was terminated on September 17, 1950, when a letter was handed to him in which the principal of the school informed him that in accordance with a letter which the principal had received from the Inspector of the Department of Education, the petitioner was not to be accepted as a teacher in the institution. The contents of the Inspector's letter, a copy of which was attached, were as follows : "The Director of the Department of Education has requested me to inform you that the Ministry of Defence objects to the appointment of Dr. Israel Sheib as a teacher." The petitioner approached the Ministers of Defence and Education and demanded an explanation of why they had disqualified him and opposed his appointment as a teacher. He received a reply from the Minister of Defence in the following terms :- "The Ministry of Defence objected to your. appointment as a teacher because, in your book and your newspaper, you urge the use of arms against the Defence Army of Israel and the Government of Israel in cases where this seems to you desirable." This reply was annexed to the petition in which the correctness of its contents was denied, and I should point out that no evidence as to the matters stated in this reply was placed before the court either by the petitioner or the respondents. The petitioner received no reply from the Minister of Education. That respondent states in his affidavit that no letter was sent to him by the petitioner and that there was nothing, therefore, which called for a reply on his part.

 

3. The petitioner applied to this court for the issue of an order against the Minister of Defence and the Director of the Department of Education to appear and show cause why they should not withdraw their opposition to the acceptance of the petitioner as a teacher in the Montefiore School; and also for an order against the principal of the school that he appear and show cause why he should not allow the petitioner to return to his teaching duties. The court issued an order nisi against the Director of the Department of Education alone, and he filed an affidavit explaining his attitude. He emphasized that the Montefiore School is a private school, that he has no authority under the law in regard to the acceptance of teachers in that school, that he has no authority in regard to the dismissal of teachers save that conferred upon him by s. 8(3) of the Education Ordinance, and that no such authority was exercised by him in this case. In addition to this, the respondent disclosed in his affidavit that he had in fact approached all secondary schools (including also private schools), and had requested them not to employ teachers save with the consent of the Inspector of Secondary Schools. The relevant paragraph is as follows :-

 

            "(f) In a circular which I sent to the principals of secondary schools in the country on June 13, 1950, I requested them not to employ teachers in their schools, save with the consent of the Inspector of Secondary Schools. My intention, as the official responsible for the organization of education in the State, was to maintain an appropriate professional standard and to ensure that secondary education is suited to the requirements of the State."

           

            The affidavit goes on to state that the respondent "is under no legal or other duty to answer the question of the Reali Montefiore School relating to the petitioner with a reply which is dishonest; and that in view of the decision of the Minister of Defence that the petitioner is unsuitable to act as a teacher, he, the Director of the Department of Education, as the one responsible for the education organization in the State, is obliged to do all in his power to prevent the petitioner from being accepted as a teacher in the school in question, or in any other school in the State.

           

4. The opposition of the respondent to the order sought is in fact based, therefore, upon two submissions: first, that there is no duty upon him to give his consent or confirmation to the acceptance of the petitioner as a teacher in a private school, and that he cannot, therefore, be compelled to give such consent or confirmation or to withdraw his opposition to the employment of the petitioner as a teacher; and, secondly, that if it should be said that there is a duty upon whose fulfillment this court will insist, then the respondent has discharged his duty by relying upon the decision of the Minister of Defence disqualifying the petitioner from being a teacher. As far as the first submission is concerned, we must investigate the powers of the Director of the Department of Education in regard to schools and teachers in the State.

 

5. The Education Ordinance draws a fundamental distinction between public and assisted schools on the one hand and private schools on the other hand. Every school (other than a government school) whether it be a public, assisted, or private school, must be registered with the Department of Education (s. 4), and wide powers are conferred upon the Government in regard to the supervision of sanitary conditions obtaining in all schools without distinction. In this regard it is provided by the Education Rules that the registration of a school shall be valid only in respect of the premises specified in the application for registration, and that if alterations are made in the premises which adversely affect these from the point of view of health, the validity of the registration will expire. A public school, however, which - as I have said - also requires registration, shall not be registered or continue to be registered unless the conditions laid down in rule 9 of the Education Rules are fulfilled, and these are the rules which deal with the educational aspect of the institution. It is desirable to point in particular to sub-rule (h) of rule 9, in which it is specifically laid down that no person shall be appointed as a teacher who is unacceptable to the Director of Education. s. 7(1) of the Ordinance empowers the authorities to visit any school - other than a non-assisted school established or maintained by a religious association - and to demand information from the principal, in regard to the tuition of the pupils, the management of the school, and the names and qualifications of the teachers. The same power is conferred upon the Director of Education or his deputy in respect of any non-assisted school established or maintained by a religious association, but only after giving prior notice, nor may the Director or Deputy-Director demand any change in the curriculum or the internal administration of such school (s. 7(2)) From this, perhaps, it may positively be inferred that in respect of every other school, which is not a non-assisted school established or maintained by a religious association, the Director is entitled to interfere with the curriculum  and internal administration. Attention must also be drawn to the proviso to s. 7(2), which provides that nothing in that subsection shall prevent the High Commissioner from exercising such supervision over any school as may be required for the maintenance of public order and good government.

 

6. Greater importance in the matter before us attaches to s. 8. It is provided, in sub-section 1 of that section, that no person shall act as a teacher in any school unless be has registered with the Director of Education. Sub-section 2 provides that no person may teach in a public or assisted school who does not possess a licence to teach issued to him by the Director. Rules 10 to 31 provide the method by which a person may apply for registration and for a licence as a teacher, the classes of licence and the conditions of their issue, and it must be pointed out that registration is not a matter within the discretion of the Director, whatever may be his powers in regard to the issue of a licence. These, then, are the provisions of the law relating to the acceptance of a person as a teacher in a school and we see that there is no restriction whatsoever on a person being accepted as a teacher in a private school (save that he requires to be registered - a condition which, it appears, has been fulfilled by the petitioner). There is no need for the Director to give his consent or confirmation to the acceptance of a person as a teacher in a private school, while in regard to the dismissal of teachers, sub-section 3 of s. 8 empowers the Director to require the dismissal "of any teacher, whether in a public or assisted school or in a non-assisted school, who has been convicted of a criminal offence involving moral turpitude or who is shown to the satisfaction of the High Commissioner, after judicial enquiry . . . to have imparted teaching of a seditious, disloyal, or immoral character." The Law here lays down that the power to require dismissal exists in respect of teachers in all schools including also private schools. Similarly the power conferred upon the High Commissioner under s. 9 of the Ordinance to order the closure of a school is general in character and applies to every kind of school.

 

7. The practical effect of what I have said is that the Director of the Department of Education had no legal power to consent to or to oppose the acceptance of the petitioner as a teacher in the school of the third respondent. What is more, everything that was done by the Director of the Department of Education as described in paragraph (f) of his affidavit, that is to say, his approach to the principals of secondary schools not to employ teachers save with the consent of the Inspector, has no legal basis. We have seen that the Education Ordinance confers upon the authorities the power of supervision over all types of schools, and it describes how that supervision is to be exercised : the school must be registered, it is possible to impose upon the school sanitary conditions, it is permissible to demand information and it is possible under certain conditions to require the dismissal of teachers and the closure of a school. It is not, however, provided in the Ordinance that a teacher may not be accepted in a private school save with the consent of the Director of the Department of Education. The Law has not authorised the Director, either expressly or by implication, to supervise a private school in this way.

 

8. I do not think that every administrative act which is not provided for by law must of necessity be fundamentally invalid. As is known, there is in our day - and not only in this country - an ever-growing body of what is sometimes called "administrative quasi-law" (see Allen in his well-known work "Law and Orders", at page 155, and an article entitled "Administrative Quasi-Legislation," by Megarry in 60 L.Q.R. p. 255, and see also p. 218 ibid.). This is a body of rules which the executive authority and not the legislature lays down for itself, and according to which it acts not only in its internal arrangements, but also in its relations with the citizens. The influence of office administration which is based not on the provisions of the law but upon rules circulated by the authorities among its officials by means of circulars, is today considerable. This is a phenomenon in the life of a modern State which many regard with trepidation. (See, inter alia, Allen, ibid. and also Lord Hewart in his book. "The New Despotism"). Where the legislature has empowered the executive authority to frame subsidiary legislation within defined limits, its actions should of course not be too closely scrutinised, so long as that authority does not exceed its powers. It sometimes happens, however, that such administrative rules are framed to regulate a matter upon which the legislature has expressed no opinion, a matter within a vacuum from the legal point of view. In such a case it is appropriate to enquire as to the legal validity of such rules and provisions which do not derive from the authority of the law itself. However, this is neither the place nor the time to expatiate upon this elusive problem, since even a person who is prepared to regard this development of a body of administrative rules as a healthy and natural development, and would not hasten to invalidate it as something fundamentally bad -"administrative lawlessness", as Lord Hewart has called it - even such a person will admit that such rules have no right to exist if they exceed the limits which the legislature has conferred upon the executive authority in a particular matter. It is simply a case of an excess of authority if the authority arrogates to itself powers which are wider than those which are defined by law, and this is also true where the powers, which the authority assumes, contradict those which are conferred upon it by law. That is in fact the situation in this case. The legislature introduced a distinction, and laid down that private schools are not the same as public or assisted schools insofar as the acceptance of teachers is concerned. If this be so, the second respondent was not entitled to assume a power of which he had been deprived by law, and to lay down a rule that a teacher in a private school also may not be accepted save with the confirmation of the Inspector of the Department. It is clear that the court will not approve an administrative rule which is inconsistent with the law.

 

9. As I have said, the respondent admitted that his action was not based upon law, and he therefore emphasised the nature of his approach to the principals of private schools, stating that he only "requested" them not to employ teachers in their schools save with the consent of the Inspector. It is not necessary to say that a "request" such as this is tantamount to an order at least in so far as the petitioner before us is concerned, because for reasons which are self-evident schools would tend to yield to a "request" of this kind, as the present case proves. It is possible that had the respondent approached the principals of schools in a form that was less compelling, and had emphasised that his request had no binding force, it would have been difficult to find any fault with his approach. It is clear to me, however, from the evidence of the respondent in his affidavit, that he in fact did not employ language which gave the principals any choice - that if they so wished they could follow his opinion, and if not they could disregard it and employ a teacher against his will. In this case the respondent did not set out in the circular that the principals of schools had a choice in the matter. I have no doubt, therefore, that the respondent exceeded his authority in approaching the principals of schools.

 

10. The question arises whether we are able to grant relief to the petitioner. To the extent that I have held in this judgment - as a result of the above reasoning - that the second respondent exceeded his authority it is possible that that itself constitutes some remedy for the petitioner. The petitioner, however, asks for an order against the respondent that he withdraw his opposition to accepting the petitioner as a teacher in the Montefiore School. In regard to this it is first necessary to examine what in fact was the respondent's unlawful act in regard to the petitioner. In this respect there is in my opinion a contradiction between the version of the petitioner and that of the respondent. We must guard against a certain ambiguity in the expression "opposition". If the intention is that the respondent is not happy about the appointment of the petitioner, there is indeed no doubt that he "opposes" the petitioner's appointment in that sense. It is clear, however, that this court has no interest in the mental reservations of the respondent but only in his acts or omissions. And if the intention is to refer to a particular act, it is my opinion that the respondent did not "oppose" the appointment of the petitioner in this sense. He did not write to the principal of the school that he, the Director of the Department of Education, opposes, but that the Ministry of Defence opposes. That means that he, the respondent, refused to give his consent upon the basis of this opposition by the Ministry of Defence. It is true that the petitioner stated in paragraph 12 of his affidavit that counsel for the second respondent gave "a verbal instruction that the employment of the petitioner should be discontinued within 24 hours", but the second respondent has denied this version. It seems to me that the letters annexed to the petitioner's affidavit - that in which the Inspector informed the principal of the school of the opposition of the Ministry of Defence, and that in which the principal of the school informed the petitioner that he could not be accepted as a teacher - supports the version of the respondent, namely, that the principals of schools acceded to his request not to employ teachers save with the Inspector's consent and that in this case no such consent was given. If that is so, the petitioner can advance no contention against the respondent in regard to some positive act relating to himself, that is to say, opposition to his acceptance as a teacher, and for that reason he cannot seek the "withdrawal of his opposition". His complaint concerns a passive act, namely, the failure to give the consent that was required by the petitioner in order that the principal of the school would be prepared to accept him.

 

11. The court was not asked to compel the respondent to give the consent referred to, and even had it been asked to do so, I have no doubt that the court would have had to refuse such au application. As I have said, the second respondent exceeded his authority in requesting the principals of schools not to employ teachers save with the consent of the Inspector. If that is so, this court will not compel the respondent to do the very act which exceeds his authority, that is to say, to give his consent (or to instruct the Inspector to give his consent). The court, therefore, will also not interfere with the grounds which induced the respondent to refuse his consent in this instance. Authority for this proposition - if such be needed - way be found in R. v. Barnstaple Justices, (6). In that case the Justices were authorised to issue a licence for the use of buildings as cinemas- They were asked to give their decision in regard to a building which had not yet been built, and they considered the application and refused it. It was held by the court that no order of mandamus or of certiorari should be made against them since they had in any event no power to deal with an application for the issue of a licence before the building had been erected. The position in our case is similar actually to that which obtained in the case of Matossian v. Bergman, (4). In that case too an official exceeded his authority, but in order to remedy the situation and restore the previous position it would have been necessary for the official to perform an act which the law did not empower him to do. The unlawful act had already been done. The court considered the position after the event, and found no way to issue an order to the official in order to remedy the situation that had arisen. The unlawful act in the case before as is the approach in the circular to the principals of the schools. The court is now asked to order the respondent to withdraw its opposition to the petitioner. I have already said that the question in this case is in fact not one of opposition, but of the absence of consent. It is clear that the court cannot compel the respondent to restore the position to what it was by giving his consent, since he has no power to consent. In regard to the "withdrawal of opposition", it is no doubt correct that where an official is unable himself to set aside an unlawful act on his part, the court will be competent to set aside such act (Bouchman and Shoulyan v. Bergman, (5). In the present case, however, there was no act on the part of the respondent which can be regarded as "opposition", so that even if an order setting aside such opposition were to be made, it would not operate as a consent, the giving of which is made a condition - albeit unlawfully - to the petitioner being accepted as a teacher. It seems to me that in these circumstances this court has no alternative but to discharge the order nisi.

 

OLSHAN J. The decision of the court is that the interference by the second respondent in the employment of the petitioner as a teacher in the institution of the third respondent was unauthorised in law, and that the second respondent must refrain from interfering in this matter. It is decided by a majority to make a final order to this effect.

 

Order nisi made absolute against the second respondent.

Judgment given on February 8, 1951.

H.C.J 1601/90

H.C.J 1602/90

H.C.J 1603/90

H.C.J 1604/90

 

Advocate Meshulam Shalit

v.

M.K. Shimon Peres & Others

H.C.J 1601/90

 

 

Advocate Yitschak Ben-Israel

v.

Labour Alignment Knesset Faction & 9 Others

H.C. 1602/90

 

 

Eliad Shraga

v.

Knesset Speaker & 18 Others

H.C. 1603/90

 

 

Ronen Bar Shira

v.

M.K. Shimon Peres & 15 Others

H.C. 1604/90

 

 

 

In the Supreme Court Sitting as High Court of Justice

[8 may1990]

Before The President (Justice M. Shamgar), A. Barak J. and E. Goldberg J.

 

Editor's Summary

 

                The combined petitions in this case raise a single issue, i.e., whether agreements concluded between Knesset factions with a view to the establishment of a coalition government (referred to hereafter as "coalition agreements") are required to be brought to the attention of the public.

               

                In view of Israel's electoral system, resulting invariably in the representation in the Knesset of a large number of factions and the consequent need to establish coalition governments, the question is of considerable practical importance, and coalition agreements are indeed a regular feature in the process of formation of governments.

               

                Attorney for the Likud faction argued for the existence of a legal duty to publish coalition agreements, requesting the Court to define the parameters of such duty and submitting the agreements it had reached with other factions. The Labour Alignment asked the Court to give a ruling on the question whether a duty of disclosure exists or, in the alternative, to satisfy itself with the Alignment's willingness to publish its agreements. The United Torah Judaism - Agudat Yisrael faction submitted that the Court should recommend the legislature to enact appropriate legislation on the subject, or, alternatively, a way should be found to require disclosure of the agreements by all factions simultaneously.

               

                The Attorney General's response was that existence of a duty under public law to disclose coalition agreements was indisputable. Publication should coincide with presentation of the Government before the Knesset when it informs the Knesset of its basic political platform, and this has indeed become standard parliamentary practice.

               

         

          The High Court held as follows:

         

1.       Coalition agreements are an integral part of the Israeli governmental structure and electoral system.

 

2.       Such agreements are drawn up by persons holding public office who are elected by the public, and are therefore trustees of the public interest. Such position of trust, as well as a general duty to act in a fair manner, require them to make a full public disclosure of information at their disposal.

 

3.       The democratic process requires ongoing communication between electors and elected, which is not confined merely to election times and for this to be effective, the public as well as each individual voter, have right of access to full information to enable them to make the appropriate choice when elections take place. Hence the necessity for full disclosure of coalition agreements.

 

4.       Knesset members also have the same right of access to information as to the content of coalition agreements, so as to enable them to exercise their choice where a new government is presented before the Knesset for a vote of confidence.

 

5.       Disclosure of coalition agreements is also required in the interest of effective public scrutiny of their contents, thus ensuring their conformity with the law and enhancing public confidence in government administration.

 

6.       The duty to disclose coalition agreements is not an absolute one. Other interests, as for example those relating to security or foreign relations, or the need at times for political negotiations to be held away from the full glare of publicity may, in certain cases, require non-disclosure.

 

7.       The same principles apply to disclosure of agreements concluded between opposition factions, as to these concluded between coalition partners.

 

8.       On principle, there is nothing to prevent the Court from laying down specific rules with regard to disclosure of coalition agreements, to be derived from basic constitutional principles. The Court would thereby act in a creative, rather than an interpretative capacity, in the common law tradition, which has also been adopted by the Israeli legal system, especially in the field of administrative law.

 

9.       Nevertheless, the Court recommended that the whole field of political agreements be the subject of appropriate legislation by the Knesset, which should regulate, inter alia, the scrutiny of the contents of such agreements and details relating to their disclosure, these being matters which cannot be effectively dealt with by the courts.

 

          The Court therefore confined itself to laying down the general principle that political agreements must be disclosed, and the broad rules relating thereto, such as the timing of thereof, i.e. no later than presentation of the Government before the Knesset.

 

10.    The Court also dismissed the argument that section 15 of the Basic Law: The Government refers explicitly only to publication of the Government's political platform and therefore, ex silentio, coalition agreements do not require publication. The positive requirement to disclose such agreements should be derived from basic constitutional principles, as explained above.

 

 

 

Israel Suprement Court Cases Cited:

[1]   H.C. 133, 143 79 "Advocates in the Central District" List v. Election Committee, 33(3) P.D. 729.

[2]        H.C. 910/86 Ressler v. Minister of Defence, 42(2) P.D. 443.

[3]        H.C. 501/80 Zu'abi v. Abu Rabiah, 35(2) P.D. 262.

[4]        H.C. 669/86, 451, 456/86 Rubin v. Berger, 41(1) P.D. 73.

[5]        H.C. 262/62 Peretz v. Kfar Shmaryahu Local Council 16 P.D. 2101.

[6]   H.C. 142/70 Shapira v. Jerusalem District Committee of the Israel Bar, 25(1) P.D. 325.

[7]   H.C. 840/79 Motion 830, 860/79 Contractors and Builders Central Committee v. Government of Israel, 34(3) P.D. 729.

[8]   H.C. 1523, 1540/90 Levi v. Prime Minister of Israel; Mintzer v. Modai, 44(2) P.D. 213.

 

[9]   H.C. 680/88 Schnitzer v. Chief Military Censor. 42(4) P.D. 617. (also reported in 9 Selected Judgments, 77)

[10]      H.C. 372/84 Klopfer-Naveh v. Minister of Education and Culture, 38(3) P.D. 233.

[11]      H.C. 620/85 Mi'ari v. Knesset Speaker, 41(4) P.D. 169.

[12]      Cr. A. 71/83 Flatto-Sharon v. State of Israel and Counter appeal, 38(2) P.D. 757.

[13]      H.C. 1/81 Shiran v. Broadcasting Authority, 41(3) P.D. 255.

[14] H.C. 399/85 Kahana v. Executive Committee of the Broadcasting Authority, 41(3) P.D. 255.

[15] H.C. 531/79 Likud Faction in Petach Tikvah Municipality v. Petach Tikvah Municipal Council, 34(2) P.D. 566.

[16]      H.C. 143/56 Achjiji v. Traffic Controller, 11P.D. 370.

[17]      H.C. 73.87/53 "Kol Ha'am" Ltd. v. Minister of the Interior, 7 P.D. 871.

[18] F.H. 9/77 Israel Electric Corporation and Haaretz Newspaper Publication Ltd., 32(3) P.D. 337 (also reported in 9 Selected Judgments, 295).

[19]      Cr. A. 95, 99/51 Fumdenski v. Attorney General, 6 P.D. 341.

[20] H.C. 243/82 Zichroni v. Executive Committee of the Broadcasting Authority, 37(1) P.D. 757.

[21] H.C. 428, 429, 431, 446, 448, 463/86, 320/86 Brazilai vs. Govern­ment of Israel, 40(3) P.D. 505.

[22] Election Appeal 1/65 Yarador v. Chairman of Central Elections Committee for Sixth Knesset, 19(3) P.D. 365.

[23] Election Appeal 2/84 Neimann v. Chairman of Central Elections Committee for Eleventh Knesset; Avni v. ditto, 39(2) P.D. 225. (also reported in 8 Selected Judgments, 83).

[24]      H.C. 1/49 Bejarano v. Minister of Police, 2 P.D. 80.

[25]      H.C. 337/81 Mitrani v. Minister of Transport, 37(3) P.D. 337.

[26] F.H. 29, 30/84 Kosoi v. Bank Feuchtwanger Ltd.; Philico Finance and Investment Co. v. ditto, 38(4) P.D. 505.

 

English Cases Cited:

[29]      Scruttons v. Midland Silicones [1962] 1 All E.R. 1 (H.L.)

 

Objection to Order Nisi. Petitions allowed and Order Nisi made Absolute.

 

The petitioner in H.C. 1601/90 appeared on his own behalf.

 

            Advocates H. Meltzer and O. Kariv appeared on behalf of the first respondent in H.C. 1601/90, the first and second respondents in H.C. 1601/90, the first and second respondents in H.C. 1602/90, the third respondent in H.C. 1603/90 and the tenth respondent in H.C. 1604/90.

 

            Advocate E. Haberman appeared for the second respondent in H.C. 1601/90, for respondents 2-6 and 8-10 in H.C. 1602/90, respondents 4 and 19 in H.C. 1603/90, and respondents 1-7 and 9 in H.C. 1604/90.

           

            The petitioner in H.C. 1902/90 appeared on his own behalf.

           

            Advocate A. Palas appeared for the seventh respondent in H.C. 1602/90, and respondents 11-14 in H.C. 1604/90.

           

            Advocate M. Corinaldi appeared for the petitioner in H.C. 1603/90.

           

            Advocate N. Arad, Director of the High Court Division in the State Attorney's Office, appeared for the first and second res­pondents in H.C. 1603/90 and the sixteenth respondent in H.C. 1604/90.

           

            Advocates H. Cohen and S. Moran appeared for the petitioner in H.C. 1604/90.

 

 

JUDGMENT

SHAMGAR P:

            1. The proceedings in all the petitions before us were concerned with one question only: whether Knesset factions which conclude coalition agreements among themselves prior to the formation of a government are obliged to publish those agreements. On this we based our order nisi in this matter whereby the respondents were required to show cause "why agreements which were, and are, concluded in connection with, and prior to, a vote on the formation of a government under section 15 of the Basic Law: The Government, should not be published".

           

            2. The various respondents' replies to the order nisi were not uniform. Learned counsel for the Likud faction, Advocate Eitan Haberman, advocated the view that the court should recognise the existence of such an obligation and should outline its main elements. That respondent also submitted arrangements in writing which it had reached with various factions, namely:

           

            (a) Memorandum of a meeting between the Likud faction and the Degel Hatorah faction, on 18.3.90.

           

            (b) An agreement between the Likud faction and the Promotion of Zionism in Israel faction of 11.4.90, and an announcement by the Prime Minister published following thereon.

           

            (c) A document outlining cooperation between the Likud faction and the Shas faction.

           

            The Labour Alignment faction did not attach the agreements which they had reached to their reply; but declared that they would be prepared to publish them voluntarily. They asked that the court first give them directions, if it saw fit to do so, concerning the actual obligation to publish agreements, the manner in which they should be published and the practice relating there to while taking into account, inter alia, those legal rules and considerations presented to us by their learned counsel, Advocate Hanan Meltzer. And these are the questions to be considered:

           

            (a) The effects of the obligation to disclose on the Knesset Members (Immunity, Rights and Duties) Law, 1951.

           

            (b) Harmonisation between any possible ruling and the provisions of section 15 of the Basic Law: The Government.

           

            (c) The question of whether it would be right for the court to lay down principles instead of the Knesset formulating its position by way of legislation, as was done, for example, in the case of the Political Parties (Financing) Law, 1973.

           

            In sum, the court was asked:

 

"To determine whether there is room for a general ruling concerning disclosure of the agreements referred to in the order nisi, or to be satisfied - to the extent to which it deems this to be fit and just - with readiness to disclose them, without laying down any hard and fast judicial rules, leaving the constitutional questions presented and connected with the matter for further consideration, while bringing them to the notice of the legislature for its consideration.

 

In any event the honourable court is requested - if it should decide that there is room for publishing the agreements, in the light of the opinions of the parties before it - to give appropriate directions as to the manner of publication, its timing, the consents required for this purpose, and guarantee of mutuality and concurrence with the other factions and factors connected with the said agreements."

 

            The United Torah Judaism - Agudat Israel faction concurred with the arguments of learned counsel for the Labour Alignment faction. The following is the gist of the arguments presented by their counsel, Advocate Eiran Peles:

           

"In consideration of the special nature of coalition agreements and of the effects of an obligation to disclose them on the substantive immunity of Members of the Knesset and their rights, Agudat Israel will submit that the honourable court should recommend to the Knesset that they enact 'primary legislation' which should take account of the special requirements of a coalition agreement which is part of the agreements which come within the province of public law.

 

As the reference is to one of the agreements within the province of public law, Agudat Israel will submit in the alternative, that the court should determine the manner in which coalition agreements should be published simultaneously by all the factions and the form and method of publication in such a way as to prevent exploitation of such agreements by political elements, to ensure that the special character of the agreements be preserved and in such a way and timing as not to interfere with the ongoing conduct of negotiations for the formation of a government."

 

            Mrs. Nili Arad, Director of the High Court Applications Division of the State Attorney's Office, submitted the response of the Attorney General to the effect that "there is no disputing the existence of obligation to give publicity to agreements" which come within the province of public law.

           

            In so far as the timing of the publication is concerned, there is a recommendation in the above response that the publication coincide with the Government's presentation of itself before the Knesset, under section 15 of the Basic Law: The Government, in the course of which notice of the basic lines of its policy is announced since in any case according to the practice which has developed since the seventh Knesset the coalition agreements which have been concluded are tabled before the Knesset at this stage. The said response also referred to the significant question of legal validity of the agreements, in the light of their content, but we saw no cause for dealing with this question, because of the limits we outlined in our formulation of the order nisi.

           

            3. The political agreement as expressed in the coalition arrange­ments between Knesset factions prior to the formation of a government, is to a great extent the outcome of the structure of our political regime and of our system of elections.

           

            The Government functions by virtue of the Knesset's confidence. When a new government has to be formed, after elections or after a vote of no-confidence in the Government, and a member of the Knesset, who has been entrusted with this task, succeeds in doing so, the Government presents itself to the Knesset in order to receive a vote of confidence. At that stage its future policy is outlined.

           

            For many reasons, including the system of proportional representation, under section 4 of the Basic Law: The Knesset (see also section 81 (a) of the Knesset Elections Law, 1969, and H.C. 143, 133/79 [1] at p. 732) and the multiplicity of party factions in all the Knessets, from the first till the present one, it is generally necessary for the purpose of forming a government to obtain the prior consent of several factions to support the projected government. Till now there has never been a government consisting of only one party.

           

            The result of this need to receive the consent of several factions is inter alia, that an agreement, or several agreements, must be concluded between Knesset factions. In these agreements the subjects forming to the outlined future policy of the Government are regulated, as are additional questions concerning the compo­sition of the Government and the scope of its functions.

           

            The coalition agreement is, thus, an accepted device in Israel, as it constitutes a framework for political consensus among parties (H.C. 910/86 [2] p. 507), a means for filling posts in the Government and the executive authorities as an early stage, and similar matters. Even an agreement on the staggering of office amongst several candidates on the same list was brought before this court on one occasion (see H.C. 501/80 [3] with a view to obtaining its aid in enforcing it. This of course does not exhaust the subjects which can be regulated in such agreements.

           

            4. Is there an obligation to bring such agreements between factions, or between a faction and a member of the Knesset, to the notice of the public? The answer to this question lies in the nature of the sphere within which it falls and in the sources from which the agreement derives its values.

           

            Such an agreement falls within the scope of public law (according to my distinguished colleague, Justice Barak, in H.C. 669/ 86 [4].

           

            An agreement within the bounds of public law which deals with elections - to the Knesset, to a local authority or to a statutory public body - is not necessarily subject to the general laws of contract, but that does not mean that it is exempt from judicial review of its terms. As noted in the above judgment (at p. 78):

 

"we are concerned here with many and varied agree­ments covering several areas (political, social, eco­nomic) of public life. These agreements - so we assume - are made in all seriousness and with the intention of honouring them. It is mete not to remove these agreements from t he preserves of legal regulation and judicial review."

 

            These agreements are concluded by public functionaries chosen by the electors to carry out legislative and government functions. Thus the agreements are not intended for the purpose of arranging matters of private or personal interest:

           

"A public personality acts as a trustee on behalf of the public: He does not act on his own behalf but in the public interest. It is only natural, therefore, that agreements and promises made by him should be examined in accordance with the standards of public law..." (above). See also H.C. 262/62[5] p. 2115; H.C. 142/70 [6] p. 331, and H.C. 840/79 [7].

 

            In this context we held recently in H.C. 1523/80 [8] p. 214, that:

           

"...Statutory discretion must always favour the welfare of the public, and must be subject to the desire to forward the general good. Thus even in extreme and crucial instances, when there is a conflict of interests, the public interest always predominates."

 

            5. The nature of the arrangements, which are the subject of these proceedings, being public agreements, have direct repercussions on the following:

 

            (a) The norms which ought to be applied to the formulation and implementation of such agreements;

           

            (b) The function of the courts in respect thereof.

           

            The democratic process can only function on condition that it is possible to clarify openly all problems on the agenda of the State and exchange opinions about them freely. The continuity of the relationship between the elected and the elector loses, it is true, some of its direct nature and intensivity after the elections, but election does not sever the bond between the public and its elected representatives until the next elections. The whole political process is closely watched by the general public, which follows events attentively in order to be able to express ongoing opinions and in order to reach conclusions concerning the present and the future. Freedom of public opinion and knowledge of what is happening in the channels of government are an integral part of a democratic regime, which is structured on the constant sharing of information about what is happening in public life with the public itself. Withholding of information is justifiable only in exceptional cases where security of the State or foreign relations may be impaired or when there is a risk of harming some vital public interest (within the meaning of sections 44 and 45 of the Evidence Ordinance [New Version], 1971).

           

            Amongst those aims which a public agreement is designed to serve must performance be included the good of the public and preservation of the rules of fairness and integrity insofar as the functions contemplated by the agreement are concerned. The existence of such aims provides the foundation for the public's confidence in the system of government which they chose for themselves and provides one or other public figure with the opportunity of formulating ideas for the future. This applies not only to the general public but also to the individual member of the Knesset who is called upon to take a stand on the question of a motion of confidence in the Government as pronaed under section 15 of the Basic Law: The Government, or in the course of his parliamentary life.

           

            However, it is impossible for the public's confidence to be based on what is concealed, in the absence of the exceptional circumstances (referred to above) which are also the product of public interest, pure and simple, of a different kind. The guidelines with respect to the creation of a proper balance in exceptional circumstances, where the choice of one of the conflicting public interests may lead to the exclusion of the interest in free and full publication of information, where designated recently in H.C. 680/80 [9].

 

            But what is usual and accepted is that the preservation of the normative framework is ensured, first and foremost, by publication, and disclosure to the electorate in general and members of the Knesset in particular, of information concerning the governmented set-up, the actions of its components and the functioning of the elected representatives, in order to enable the public to see, know and judge.

           

            Denial of publication can water down the ability of the public to participate in political life (for a similar issue, see H.C. 372/84 [10] p. 238).

           

            Everything stated above concerning information about the parliamentary set-up and the executive applies, mutatis mutandis, to the public and normative characteristics of agreements such as those on which the petitions before us are based. Preservation of the character of an agreement in accordance with the standards consistent with its aims is dependent, to no small an extent, on its being brought to the notice of the public. The element of disclosure is the natural consequence of the confinement of the content of the agreement to matters of public interest for the general good.

           

            Public scrutiny is not only an expression of the right to know, but it is also an expression of the right to control.

           

            From this follows, also, the answer to the second question referred to above: that is the place, within this framework, of the courts. In the absence of judicial review there is no effective and immediate way of examining and enforcing the obligations imposed by public law. The existence of public law norms in general and review by the courts are interdependent and intertwined.

           

            6. It was argued before us that publication could be repugnant to the provisions of the Knesset Members (Immunity, Rights and Duties) Law and in particular to section 1 of that Law. I could find no basis for such concern. The statutory status of Knesset factions is not regulated in that Law but in the various statutes dealing with Knesset elections, and there is nothing in section 1 of the said Law or in any of its other provisions which affects the legal rights and duties of a Knesset faction.

 

            But, above all, there is nothing in the said Law to impete a normative definition of rules applicable to an agreement anchored in public law. The question of what, in the light of the provisions of section 1 of the above Law, are the possibilities for legal action, in the event that a member of the Knesset does not fulfil his obligation to disclose to the public the existence of a public agreement, is not an issue before us. In any event, such a question has no bearing on the very creation and existence of basic norm governing such agreements and the necessity of defining and declaring it. In other words, a member of the Knesset who chooses not to publish an agreement with a faction or with another member of the Knesset, will be entitled to immunity, but the definition of his omission as contravening desirable and correct norms of conduct, will remain.

 

            Mr. Meltzer argued, further, that a "negative" regulation can be derived from section 15 of the Basic Law: The Government that section mentions the publication of policy lines but at the same time makes no mention of coalition agreements, from which one can derive a negative by implication. I cannot accept this interpretation. One cannot learn from section 15 that the intention was to block the way to, or deny the existence of, other additional public obligations which are inherent in our democratic regime. Disclosure of information concerning agreements is not only an integral part of our basic conceptions, as explained above, but is a principle of democrat positive commands which must be observed in practice. Section 15 defines and summarises only those matters which are to the act of presenting a government, and there was no intention of making it cover all parliamentary proceedings prior to the presentation of a government. Proof of this can be found in the fact that coalition agreements have been tabled in the Knesset since the Seventh Knesset, without this being regulated in the above section 15.

           

            7. Learned consel for the Labour Alignment faction argued, as mentioned above, that it was preferable for the matter of publication of agreements to be regulated by primary legislation.

           

            We, too, are of the opinion that the matter deserves legislative regulation. Furthermore, in the present legal and constitutional situation every legislative enactment is preferable to an arrange­ment based only on judicial construction of constitutional concepts.

           

            However, once the matter has been brought before us on the initiative of the petitioners, we do not intend to leave the matter open without pronouncing upon it. As long as there is no enactment, it is only proper for this court, which maintains judicial control within the bounds laid down in section 15 of the Basic Law: The Judicature and on the basis of the basic constitutional precepts which are part and parcel of our law, to have its say and to lay down rules which should be applied in the absence of legislation.

 

            8. It is our view, therefore, that agreements between factions, or between a faction and a member of the Knesset, or between individual members of the Knesset, concluded in anticipation of the formation of a government, ought to be published, if they deal with the functions of the legislative or executive authorities.

           

            In this respect there is no substantive difference, in our opinion, where an agreement concluded prior to the formation of a government is concerned between a situation where a government has been successfully formed and one where an attempts to do so has failed .

           

            The timing of the publication should rightly be not later than the date of the anticipated presentation of the Government before the Knesset, under section 15 of the Basic Law: The Government, and the desirable place of publication, is that where the said functions take place, the Knesset. But, of course, the Knesset can lay down, in its Constitution, additional technical regulations with respect to the tabling and publication of the agreements.

           

            9. We hold, therefore, that the order nisi be made absolute and that the agreements, which are the subject-matter of the petitions, be made public.

 

BARAK, J.:

I concur with the judgment of my colleague, President Shamgar. In view of the importance of the matter I wish to add several comments concerning the legal source of the obligation to disclose political agreements prior to votes of confidence, and the role of this Court in formulating it. The subject of my comments is the political agreement concluded between factions or between in­dividual members of the Knesset in anticipation of a vote of confidence in the Government. An agreement of this nature can be between factions and members of the Knesset, who support the Government ("a coalition agreement"), or between factions and members of the Knesset who oppose the Government or abstain from voting ("an opposition agreement")

 

The Source of the Obligation

 

            1. Israel is a parliamentary democracy. The people elect parties or lists whose candidates are elected to the Knesset. "The Knesset is the parliament of the State" (section 1 of the Basic Law: The Knesset). The Knesset is the legislative authority. (both constituent and ordinary). It creates and topples governments. "The Government is the executive authority of the State" (section 1 of the Basic Law: The Government). It functions by virtue of the Knesset's confidence. The Knesset and the Government are two organs of the State which together with the courts make up the three central authorities of the State, exercising a process of mutual checks and balances (see C. Klein, "On the Legal Definition of a Parliamentary Regime and on Parliamentarism in Israel", Mishpatim 5/308).

           

            2. At the basis of this system of government is the right to vote vested in the citizens of the State, who elect the parliament, either by way of lists or parties. There is '"a competitive struggle for power, in the course of which a few individuals are elected as political leaders..."(Justice D. Levin, in Cr. A. 71/83 [12] p. 787). The political parties are the constitutional instruments through which the political will of the people is realised. Accompanying our system of elections we have a multi-party regime, which is based, by its very nature, on the formation of government coalitions. Political agreements become, therefore, a vital legal-political instrument, which in our constitutional regime is of great importance for the purpose of ordering political dealings. It is thus only natural that, citizens, by whose votes the governing organs (the Knesset) are constituted should be aware of the content of such agreements. So that just as citizens should know about the platforms of the parties, so should they know about the content of political agreements, which very often contain diversions from, or addena to, the political platforms.

 

            In the case of a political struggle between parties it is therefore obligatory that citizens be informed about the subjects and personalities connected with the political process. President Shamgar emphasised this in H.C. 1/81 [13], p, 378, when he said:

           

"The system of democratic government draws sus­tenance from - and is even dependent on - a free flow of information, to and from the public, regarding prominent matters which affect the lives of people in general and of the individual in particular. Thus the free flow of information is often regarded as a kind of key to the operation of the whole democratic system..."

 

            And I, too, stressed this on another occasion (in H.C. 399/85 [14] p. 274) when I noted that:

           

"Free exchange of information, opinions and views, not imposed by the authorities, in an attempt at mutual persuasion, is  sine qua non for the existence of a democratic regime, based on the rule of the people, by the people, for the people. Only in this way can it be ensured that every individual receives the maximum information he requires in order to reach a decision on matters of regime and government. A free flow of opinions allows for order by change in the balance of formces controlling government. Without freedom of expression democracy loses its spirit".

 

            Such information, which is vital for the existence of a proper democratic regime, also comprises data about political agree­ments. On the basis of this information the public can make a decision with respect to its representatives and their political attitudes and manner of functioning in the Knesset. Only with his information as a background can the public decide, on election day, one way or the other, and only on the basis of this information can there be a free exchange of opinions in the interval between elections.

 

            3. The obligation to disclose political agreements is grounded not only on the citizen's need to take up a political stand. There is another, immediate requirement connected with the formation of the Government itself. The Government is constituted when the Knesset has expressed confidence in it (section 15 of the Basic Law: The Government). Knesset members who participate in the vote of confidence must know what obligations the coalition partners forming the Government have taken upon themselves. If indeed the purpose of the political agreement is to direct future conduct, it is essential that information about the future influence of the agreement be available to members of the Knesset who vote on the formation of the Government. Indeed, we learnt from the Attorney General's response that in practice coalition agreements are tabled in the Knesset before a vote of confidence takes place.

           

            4. The obligation to disclose, as I have already noted, follows upon the need for the citizen, in general, and the member of the Knesset, in particular, to receive information which is vital for the purpose of making political decisions. This obligation has an additional aspect. If the parties to the agreement are curane that it will be exposed to public scrutiny and criticism, this will affect its actual content. It has rightly been pointed out that sunlight is the best of and elected light disinfectents the most effourt policeman (L. Brandeis, Other People's Money and How the Bantees use it (1914) ch. 5 p. 92. Indeed, exposure of political agreements will influence the legality of their contents. It will enable public review, increase the public's confidence in the governing authorities and strengthen the structure of the regime and the government.

           

            5. Till now I have concentrated on the relationship between the obligation to disclose political agreements and the system of government. I now wish to draw attention to an additional source for the obligation to disclose. This derives from the public function of the parties to such an agreement. A Knesset faction is a constitutional unit. A political party which participates in elections to the Knesset fulfils a constitutional function. The faction and the member of the Knesset have public functions based on law. They are not merely entities operating under public law. A parliamentary faction which, or members of the Knesset who, sign a political agreement do not act on their own behalf. They are trustees for the public. I pointed this out in H.C. 669/89 [4] at p. 78:

           

"...A public personality is a trustee of the public. He does not act for himself only, but does not in the interest of the public. So that it is only natural that agreements and promises made by him are examined by criteria of public law..."

 

            Because of the duty of trust which a public personality carries it follows that he has several obligations, including that of refraining from a conflict of interests (see H.C. 531/79 [15]), acting in accordance with public ethics (see I. Zamir, Ethics in Politics, Mishpatim 17, pp. 250, 261), or being under an obligation to disclose. A private person who has information may keep it to himself, and is under no obligation to disclose it save if the demands of good faith require him to do so (by virtue of section 39 of the Contracts (General Part) Law, 1973). This does not apply to a public personality. Information in this possession is not his private "property". It is "property" which belongs to the public, and he must bring it to the notice of the public. Justice H. Cohen commented on this as follows (in H.C. 142/79 [6] p. 331):

           

"The argument that in the absence of any legal obligation to disclose I am entitled to conceal and not reveal, can be proffered by a private individual or body... but it is not available to an authority which fulfils a function by law. A private authority differs from a public authority in that it acts in its own capacity, can import or withhold information at will, whereas a public authority is created solely to serve the community and has no interests of its own. Everything it has it holds as a trustee and has no additional, different or separate rights or duties of own, over and above those which derive from its position of trust or are vested or imposed on it by virtue of nacted provisions."

           

            Thus, duty to disclose emanates from the obligations of trust. But beyond this, the parliamentary faction which, or the individual member of the Knesset who, fulfils a public function of a constitutional nature, is under an obligation to act fairly. This obligation, too, emanates from the public nature of their functions. Just as the duty to provide reasons derived from the duty to act fairly (see H.C. 143/56 [16], so does the duty to disclose. It follows, therefore, that in order to ensure that public conduct be fair it should be exposed to the light of day, thus allowing it to be stratimised and clarified.

           

            6. Till now I have discussed two legal sources for the obligation to disclose: the nature of the regime and the public character of the agreement. There is a third source, which is entrenched in the public's right to know (see Z. Segal, "The Right of the Citizen to Receive Information about Public Matters", Iyunei Mishpat 625). It has been her that freedom of expression is one of the basic principles of our system of law (see H.C. 87, 73/53 [17]). Freedom of expression is a complex value, at the crux of which is the freedom "to express one's thoughts and to hear what others have to say.."(President Landau in F.H. 9/77 [18] p. 343). In order to realise this freedom the law vests the holder thereof with additional rights derived from the freedom of expression (see Cr. A. 99, 95/51 [19] p. 355). Among these additional rights it the "right to receive information" (H.C. 399/85 [14] p. 267). As against the individual's right to receive information is the governing body's study to provide that information (H.C. 243/82, [20]).

           

            From this comes the duty of public functionaries to inform the public. So that the obligation to disclose, which derives from the freedom of expression, is connected not only to the nature of the democratic regime but also - like the very freedom of expression itself - to the right of the individual in society to know that truth and be given the opportunity for self-fulfillment. The right to know is not only a right belonging to the public in general, but it is also the right of the individual.

 

            7. I have discussed the obligation to disclose political agree­ments. This obligation is not absolute. There are certain very important considerations in favour of restricting this obligation, namely security and foreign, economic and social relations, which can justify applying limitations on the obligation to disclose. So that just as every constitutional right is not absolute, so is the right to receive information not absolute. It must give way to certain other rights and to the need to take other interests and values into consideration. It is in the public interest that political negotiations be not conducted in the glare of publicity, and that the parties to those negotiations be given the means for their proper and efficient conduct. For this purpose secrecy is sometimes necessary. Often damage will be wrought to both public and private interests if political agreements are disclosed.

           

            We must therefore strike a balance between the various considerations against the background of our constitutional concepts. It follows from this balancing process that a political agreement does not have to be disclosed if it almost certainly would be to the detriment of the public interest in general - that is the interest of the State - to do so. So that, for example, a public agreement the exposure of which would almost certainly harm the security of the State or foreign relations should not be disclosed.

           

            8. The obligation to disclose, in the areas in which it operates, covers every political agreement connected with a vote of confidence. It therefore applies both to a coalition agreement and to an agreement between opposition factions. It is not logical, from the viewpoint of the obligation to disclose, to limit it only to coalition agreements. As to the timing of the disclosure, the leading principle should be that this should take place with the signing of the agreement. However, there could be appropriate considerations justifying postponement of the disclosure. The final date for disclosure should be immediately prior to the Government being presented before the Knesset and the holding of a vote of confidence.

           

 The Function of the Court

 

            9. In his arguments before us Mr. Meltzer contended that the obligation to disclose political agreements should be laid down by the legislative body and not by the courts. He noted that he was not disputing the competence of the power of the courts to rule on the obligation to disclose or the legitimacy of this function. But he maintained that it would be wiser for this obligation to be laid down in primary legislation, which would also regulate the relation­ship between the obligation to disclose and the immunity of Knesset members. I, too, am of the opinion that there is no formal problem about our recognising the obligation to disclose. This is a matter which has not yet been regulated specifically by public law and has been left to the autonomy of the private will.

           

            The demands of life call for regulation, but this does not come about in a vacuum. We derive a from well-known and accepted basic principles. On more than one occasion we have carved out a specific legal tule from basic constitutional concepts, such as, for example, the law applicable to amnesty (see H.C. 428/86 [21]), the election laws, based on "constitutional data" concerning the existence of the State and its democratic character (E.A. 1/65 [22] p. 384; E.A. 2/84 [23]), and the rights of man, in general, based on the fact that our country is a freedom-loving democratic State (see H.C. 1/49 [24]; H.C. 337/81 [25]). We have often derived specific legal rules from basic principles, such as, for example, the principle of freedom of expression (see H.C. 73/53 [17] H.C. 680/88 [9]) or from the criteria of the trust obligation (see H.C. 531/79 [15]) or the fairness obligation (H.C. 840/79 [7]). This is not a judicial interpretative function. It is also not a judicial function aimed at filling a lacuna. It is a judicial function whose object is development of the law.

           

            The history of the common law is a history of development of the law by judges. The history of broad areas of our law - characterised by mixed system of law - is a history of judicial creativeness. Most of our administrative law is judicial law. The law of tenders, the rules of natural justice, the rules against conflict of interests, the code of administrative discretion, are all judicial creations aimed at development of the law. This court has operated in a similar matter in the field of private law. My colleague, President Shamgar, referred to this when he pointed out (in F.H. 30,29/84, [26] p. 511) that:

 

"Just as the common law, which did not consist only of the interpretation of expressions, was created in England, so has the independent possibility of develop­ing a common law, not necessarily through the merl interpretation of expressions, been brought about here."

 

            And Justice Witkon expressed a similar idea (in H.C. 29/62 [27] p. 1027), when he said:

           

"More than once has this court recognised rights which do not appear in any legal provision, and these rights, having received judicial approval, have taken shape and crystallised into rights recognised by law. Matters in common practice and within the concepts of natural justice which only yesterday were still featureless and underined have in this manner been given an impetus and awarded the status of rights. That is judicial development, which occurs side by side with the legislative function but does not trespass on its territory, and I would not wish to implide its develop­ment such a polver provides guarantee.

 

            See also A. Witkon, "The Material Right in Administrative law" (1983) 9 Iyunei Mishpat, 5.

           

            This judicial function is usually performed in reliance on the basic principles of the legal system, and thereby new rights and duties come into being. In that way a link between reality and the law is created. Thus the law progresses and develops in a natural manner together with the judicial process (see O. Dixon, "Concerning Judicial Method" Austl. L.J. (1955-6) 468). Therein lies the "genius" of development by judicial precedent (in the language of Simonds J. in Scruttons v. Midland Silicones [29]). The new legal plant grows in the soil of the old law. Such growth allows for change coupled with stability, movement coupled with marking time, creativity coupled with continuity.

           

            10 The judicial function of developing the law is limited. The judge may not act contrary to enacted law and must remain within its framework. He must operate with the interstics of the law. According to Justice Landau (in "Rule and Discretion in the Administration of Justice" Mishpatim, 292, 297: (1968)

           

"As the field of enacted law widens, the judge's use of discretion is confined to the limits of the law; and the area open to the use of discretion by the judge through independent judicial legislation becomes more limited. But even after such enactments the courts return to weaving anew man the their interpretative around the provisions of the enacted law, or interstitially, in the famous words of Justice Holmes."

           

            Within the framework of this "weaving" the court must weigh up whether it would not be preferable, in the specific case before it, to refrain from all creative action and leave the task of developing the law to the legislature (see C.A. 518/82 [28] p. 120).

           

            There are fields in which judicial activity is possible but not desirable. I do not think that the matter before us comes within this field. As already stated, we have founded the obligation to disclose on well-known basic principles. This activity of ours it no different from similar operations in the past, such as imposing the duty to give reasons (before the law on this subject was enacted), the imposition of the rules of natural justice, the imposition of the duty to refrain from a conflict of interests, and of other duties incumbent on government authorities.

           

            In reaching this conclusion I was encouraged by the position of the Attorney General, who stated that in his opinion there is an obligation under case law to disclose political agreements even without any statutory provision. I was also helped considerably by the attitude of the Likud faction, one of the largest factions in the Knesset, which was also of the opinion that actions and members of the Knesset are obliged to make public political agreements concluded amongst themselves prior to the formation of a new government.

 

            12. Nevertheless, it is advisable for the legislature to consider the subject of political agreements. As judges we can lay down general principles. We cannot rule on specific arrangements. We cannot impose the task of examining the content of agreements on a competent authority (such as the Knesset Speaker or the State Controller) nor can we create a "registry of political agreements or lay down details concerning methods of disclosure.

           

            All these matters demand legislation, which will take into account all the possible problems which can arise. But as long as the legislature has not had its say, we have not alternative but to give expression to the basic principles contained in our system of law. And this we have done.

 

 

E. GOLDBERG J.:

 

            None of the parties before us challenged the competence of this court to lay down an obligation to disclose coalition agreements and between opposition factions agreements. The legal principles on which my distinguished colleagues based the obligation to disclose are also acceptable to me. I had some doubts about whether to exercise our competence since all the parties were ready to disclose the agreements they had concluded, even in the absence of any obligation to do so. The "natural" authority which should provide the framework and content for a constitutional matter of the first degree, such as the one with which we are dealing here, is not the judicial authority, but the legislative one. I am of the opinion that even when norms of administrative law are lacking, it is not always the duty of this court to develop them by way of judicial legislation, when it is the duty of the Knesset to legislate. If I finally decided to concur with my colleagues it is because I think that if the matter is left completely open until there is statutory action, and if the matter of disclosure is left to the good will of those who conclude the agreements, then we will not have avoided the risk of damaging the fabric of our public life, with all the implications thereof.

 

I therefore concur with my colleagues' opinion.

 

Decision in accordance with the President's judgment.

 

Judgment given on 8.5.1990.

            HCJ 153/87

         

LEAH SHAKDIEL

v.

MINISTER OF RELIGIOUS AFFAIRS ET AL

 

 

 

 

The Supreme Court sitting as the High Court of Justice

[May 19, 1988]

Before Ben-Porat D.P., Elon J. and Barak J.

 

 

 

Editor's synopsis -

          The Jewish Religious Services Law provides for the establishment of local religious councils throughout the country, charged with the duty to provide Jewish religious services and to allocate public funds in support of such religious services, as are needed in the area. By Law, the membership of such councils is to reflect the general public desire and need for the distribution of such religious services in the locality and the range of interest in such services. In determining the Council's make-up, attention must be given to the different groups represented in the Local or Municipal Council and to their respective strength, but this factor is not conclusive. The members of the religious council are appointed by the Minister of Religious Affairs, the local Chief Rabbis and the Local Council, following a procedure whereby each of the above voices his opinion of the others' candidates. Disagreements between the parties concerning proposed members of the religious council are resolved by a ministerial committee comprised of representatives of the Prime Minister, the Minister of Religious Affairs and the Minister of the Interior.

         

          This case concerns the makeup of the religious council in Yerucham. The Petitioner is a religiously observant woman, who teaches Judaic subjects in the local school. She is a member of the Local Council, representing the National Religious Party, and was proposed by the Local Council to be a member of the Yerucham religious council. The local Rabbi opposed her inclusion on the religious council on the ground that she is a woman, that women have not hitherto served on religious councils and that her presence would impair the council's functioning.

         

          The Petitioner was not included among the members of the religious council. Her exclusion was explained by the ministerial committee as not based upon any principled objection to a woman serving on such a council but rather as grounded in a tradition that has developed since the establishment of the State, adhered to by all the concerned parties, that women would not be proposed as members of religious councils due to the close working relationship existing between such councils and the Rabbinate. It was also feared that the Petitioner's membership on the religious council in Yerucham would obstruct its proper functioning. The Petitioner contends that her disqualification is based on irrelevant grounds. Since the religious council is an administrative body, concerned with providing and funding religious services to the local community, and does not decide questions of religious Law, there is no reason to disqualify a woman from serving on it.

         

            The court issued an order nisi, directing the Respondents to show cause why the court should not direct that the Petitioner be included as a member of the Yerucham religious council. The Respondents appeared in opposition to the order nisi. In a decision rendered by Justice Elon, the court ordered that the rule be made absolute, holding:

           

1.      The ministerial committee, being a body that fulfills a public function under the Law, is subject to judicial review. As with all such public administrative bodies, it must exercise its discretion in good faith, honestly, rationally and without unlawful discrimination, and must make its decisions on the basis of relevant considerations.

 

2.      The Jewish religious services provided by the religious council are an integral part of the municipal services furnished in the locality and must be provided to all who request them, without regard to sex, ideology, education or any other distinction. Although such services are religious in character, the religious council is responsible only for their provision and is not concerned with the resolution of any questions concerning matters of religious Law. The qualifications for membership on the council are determined by the general legal system. Candidates for membership on the council need not meet such qualifications as are required by religious Law.

 

3.      The exclusion of the Petitioner from membership on the religious council because she is a woman is contrary to the fundamental principle of the Israeli legal system that forbids discrimination on grounds of gender. This principle finds expression in the Declaration of Independence and is one of the principles which has found its expression in the Women's Equal Rights Law, 5711-1951.

 

Justice Barak concurred in the result in a separate opinion.

 

Note - An especially interesting aspect of this case is Justice Elon's exhaustive review of Jewish religious legal literature (halakha) concerning women's qualifications to participate in public communal activities and to hold public office. Justice Elon points out that, even in earlier times, most Rabbinic scholars did not agree with Maimonides' opinion that disqualified women. In any event, he concludes, nowadays, it is the view of the overwhelming majority of Rabbinic authorities that women may so participate and may hold such public office.

 

Israel cases referred to:

[1] H. C. 44, 61/68, Rosh Ha'ayin Local Council v. Minister of interior; Sharf v. Minister of Religions 22P.D. (2)150.

[2] H.C. 191/64, Elbaz v. Minister of Religions 18P.D.(4)603.

[3] H.C. 680/81, Chairman of the Municipal Department of the Confederation of Agudat Yisrael in Israel v. Minister of Religious Affairs 37P.D. (1)709.

[4] H.C. 590/75, Barsimantov v. Minister of Religions 30P.D.(2)636.

[5] H.C. 287/76- unpublished.

[6] H.C. 223/76-unpublished.

[7] H.C. 568/76, Rabbi Harlap v. Ministerial Committee under the Jewish Religious Services Law 31P.D.(1)678.

[8] H.C. 516/75 Hupert v. Minister of Religions 30P.D.(2)490.

 

[9] H.C. 121/86 "Shas" Party Faction v. Minister of Religious Affairs 40P.D.(3)462.

[10] H.C. 392/72 Berger v. Haifa District Planning and Building Committee 27P.D.(2)764.

[11] C.A. 337/61, Lubinsky v. Tel-Aviv Tax Assessment Officer 16P.D.403.

[12] H.C. 202/57, Sidis v. President and Members of the Great Rabbinical Court 12P.D.1528.

[13] F.H. 10/69, Boronovsky v. Chief Rabbis of  lsrael 25P.D.(1)7.

[14] H.C. 148/79, Sa'ar v. Minister of interior and Police 34P.D.(2)169.

[15] P.P.A. 4/82 (M.A. 904/82), State of Israel v. Tamir  37P.D.(3)201.

[16] H.C. 114/86, Weil v. State of lsrael 41P.D.(3)477.

[17] S.T. 1/81 Nagar v. Nagar 38P.D.(1)365.

[18] E.A. 1/65 Yeredor v. Chairman of the Central Elections Committee for the Sixth Knesset 19P.D.(3)365.

[19] H.C. 258, 282/64, Zilonilas Ya'ari v. Minister of Religions; Agudat Yisrael v. Minister of Religions 19P.D. (1)517.

[20] H.C. 241/60, Kardosh v. Registrar of Companies 15P.D.1151; S.J. vol. IV, 7.

[21] F.H. 16/61, Registrar of Companies v. Kardosh 16P.D.1209, S.J. vol. IV, 32.

[22] H.C. 73, 87/53, "Kol Ha'am" Company Ltd.; "EI Ittihad" Newspaper v. Minister of Interior, 7P.D.871; S.J. vol. I, 90.

[23] H.C. 262/62, Peretz v. Kfar Shmaryahu Local Council 16P.D.2101.

[24] H.C. 163/57, Lubin v. Tel-Aviv-Jaffa Municipality 12P.D.1041.

[25] H.C. 44/86, Butchers Branch of Jerusalem District v. Jerusalem Chief Rabbinate Council  40P.D.(4)1.

[26] H.C. 195/64, Southern Company Ltd. v. Chief Rabbinate Council 18P.D.(2)324.

[27] H.C. 282/51, National Labour Federation v. Minister of Labour 6P.D.237.

[28] H.C. 507/79, Roundnaff (Koren) v. Hakim 36P.D.(2)757.

[29] H.C. 114/78 (Motion 451, 510/78), Burkan v. Minister of Finance 32P.D.(2)800.

[30] H.C. 98/69, Bergman v. Minister of Finance 23P.D.(1)693 S.J. vol. VIII, supra, p. 13.

[31] H.C. 507/81, M.K. Abu Hatzeira v. Attorney General 35P.D.(4)561.

 

Jewish law sources referred to:

            These references are not listed here, since they are given their full citation in the body of the case. On the Jewish law sources in general, see note under Abbreviations, supra, p. viii.

           

Y. Shofman for the Petitioner.

M. Mazoz, Deputy State Attorney, for Respondents Nos. 1-2.

 

JUDGMENT

 

            ELON J.: 1. Once again we are asked to scrutinize the composition of a religious council under the Jewish Religious Services Law (Consolidated Version), 5731-1971, this time the religious council of Yerucham. This court has already commented that "the ways of establishing a religious council ... are clearly very intricate and protracted ..." (H.C. 44, 61/88[1], at 154), as is evident from the numerous judgments delivered by us on the subject. In the instant case, the formation of the religious council was not only complicated and drawn out beyond the "ordinary" or "customary" measure, due to various reasons, but the matter also raises a question never before considered in the judgments of this court. The Petitioner challenges her disqualification as a member of the religious council, for the sole reason, she contends, that she is a woman. That is the heart of the petition, but before considering it we shall briefly examine the sequence of events in this matter, starting with two preliminary comments:

           

            a. The original petition was filed against the Minister of Religious Affairs (Respondent No. 1) and the Committee of Ministers under section 5 of the above-mentioned Law (Respondent No. 2), and in the course of its hearing two additional respondents were joined - the Yerucham Local Council (Respondent No. 3) and the Rabbi of Yerucham (Respondent No. 4);

           

            b. In the original petition, the Petitioner also questioned the delay of the first two Respondents in concluding the task of forming the religious council. In the course of hearing the petition the composition of the religious council was concluded, but the Petitioner was not included among its members. This left us only the first question to deal with, i. e. why the Petitioner was not included as a member of the religious council. We issued an order nisi as well as an interim interdict restraining the first two Respondents from giving notice in Reshumot* concerning the new composition of the Yerucham religious council (without inclusion of the Petitioner), until otherwise ruled by this court. We now propose so to rule .

           

            2. The Petitioner is a resident of Yerucham, an Orthodox Jewess, and a trained, experienced teacher of Judaic studies. She is a member of the Yerucham Local Council representing the Labour Party, and on January 26, 1986, the Local Council proposed her as one of the four candidates nominated on its behalf to the religious council.

           

            3. That election was preceded by several events which are relevant to our discussion here.

           

            The religious council of Yerucham is composed of nine members, like the number of the members of the Local Council (section 2 of the above-mentioned Law). It was first appointed in 1975. Notice of a newly composed religious council was published in Reshumot in 1981, which was invalidated, however, by judgment of this court (H.C. 513/81). The council appointed in 1975 thus resumed its functioning, but with only five remaining members out of nine; one had died, two had resigned and one had left Yerucham. The Minister of Religious Affairs approached the Local Council and the Yerucham rabbinate three times (once before the municipal elections on October 25, 1983, and twice thereafter) requesting them to propose their candidates for the religious council, as prescribed by section 3 of the Law, but to no avail, for reasons that were not entirely clarified. The Minister repeated his request for the fourth time in March 1985, and it was only on September 18, 1985 that he received a response from the secretary of the Local Council, who named four candidates on behalf of the Council, with the Petitioner excluded. It transpired that the list of candidates had apparently been compiled by the head of the Council, but was not confirmed by the Council itself. This need was indicated to the head of the Council, and he submitted the matter to the Local Council for resolution. On January 26, 1986 the Council discussed the matter and elected its candidates for the religious council, among them the Petitioner.

 

            Meanwhile, and before the said decision of the Local Council on January 26, 1986, the Shas party faction petitioned this court (H.C. 344/85) with respect to the reconstitution of 40 religious councils, including that in Yerucham. On November 10, 1985, judgment was given, by consent of the parties, to the effect that the case of each of these religious councils which the Minister of Religious Affairs failed to reconstitute within 90 days, should be referred to the Committee of Ministers under section 5 of the Law. On February 8, 1986, pursuant to that decision, the matter of the formation of 21 religious councils which the Minister of Religious Affairs was unable to reconstitute - including the religious council in Yerucham - was referred to the Ministerial Committee for determination.

           

            The Petitioner contends that the resolution of the Local Council of January 26, 1986, concerning its choice of candidates, was conveyed to the Minister on February 6, 1986 (that is, before the matter of the formation of the religious council was referred for determination to the Ministerial Committee). It is not clear from the evidence before us precisely when that resolution of the Local Council reached the attention of the Minister, but the point is not material since it is not disputed that the Petitioner was included in the list of candidates made known on January 26, 1986, as aforesaid. On March 23, 1986, the Petitioner, as one of the candidates nominated to represent the local authority on the religious council, wrote to the Minister inquiring as to the reason for the delay in the formation of the religious council in Yerucham. In a letter dated May 6, 1986, Mr. Marmorstein, head of the department for religious councils in the Ministry of Religious Affairs, informed the Petitioner that no notice whatever had yet been received by the Minister respecting any change in the Local Council's nominees for the religious council in relation to the list previously submitted. Mr. Marmorstein added the following comment:

 

            If we understand your letter correctly, it appears that you are one of the candidates. In this regard I can already inform you that the matter is not at all feasible; there are no female members on the religious council, only male members can serve on it, and I assume that you would not even want to create such a precedent.

           

            As to the substance of the matter, the letter continued, the formation of the religious council had been referred to the Committee of Ministers, pursuant to the above-mentioned decision of this court in the petition brought by the Shas party faction, and it was to be hoped that the Committee would conclude its task within a reasonable period of time.

           

            This hope was not fulfilled. In response to the above letter, the Petitioner wrote to the Prime Minister, who serves as chairman of the Committee of Ministers (section 5 of the Law), complaining strongly about the suggestion in Mr. Marmorstein's letter that she was unable to serve as a member of the religious council, and asking to speed up the formation of the religious council, with herself included as one of its members, representing the local authority. She also approached other persons, and the matter was even raised for discussion in the Knesset.

           

            In a letter written by Mr. Marmorstein to counsel for the Petitioner, dated October 28, 1986, he described the sequence of events in the composition of the Yerucham religious council. It was stated, among others, that since the decision of the Yerucham Local Council (concerning its candidates for the religious council) had been sent to the Minister on February 6, 1986, neither the formation of the religious council nor the joint opinion (required under section 4 of the Law) could have been prepared by February 8, 1986 (the date on which the matter of constituting the religious council was referred to the Committee of Ministers), "and unconnected with the petition of the Shas faction, the Committee of Ministers dealing with the composition of the religious councils was asked to handle Mrs. Leah Shakdiel's complaint following her approach to the Prime Minister".

           

            The Committee of Ministers did not consider the matter of the religious council in Yerucham. Meanwhile a new Minister of Religious Affairs was appointed and thereafter the composition of the Yerucham religious council was taken up by the various competent bodies. The new Minister asked for time to consider the matter, it was raised again in the Knesset plenum and Internal Affairs Committee, and resolutions were passed. The Minister of Religious Affairs met with the Petitioner, and assurances were given on his behalf that the matter would be arranged and settled (as to which more will be said below), but no solution was forthcoming. In these circumstances, the Petitioner filed her petition before this court, and on March 12, 1987, we issued an order nisi as mentioned at the outset of our judgment.

 

            4. Approximately one month after the order nisi was issued, the Committee of Ministers - composed of representatives of the Prime Minister, the Minister of Religious Affairs and the Minister of the Interior - began its discussions on the formation of the religious council in Yerucham. On April 21, 1987 the chairman of the Committee requested the three authorities whose nominees compose the religious council - that is, the Minister of Religious Affairs, the local authority and the local rabbinate (section 3 of the Law) - to propose their candidates. The Minister of Religious Affairs submitted his list of candidates in anticipation of a meeting scheduled for May 8, 1987. The meeting was postponed because the local rabbinate had not yet nominated its candidate, and this was done on May 29, 1987. On June 9, 1987 the Committee of Ministers held another meeting, and in view of changes in the list of candidates submitted by the Minister of Religious Affairs, another meeting was scheduled "to allow further consultation between all the parties". This meeting was set for August 5, 1987, but was postponed at the request of the head of the Local Council because, among other reasons, the Council was to discuss again its list of candidates on that same day. In mid-August a letter was received from the Local Council, in which it submitted its final list of candidates, this list including two changes, but the candidacy of the Petitioner remained unaffected. The Local Council also advised that it confirmed the candidates of the Minister of Religious Affairs and the candidate of the local rabbinate. The Committee of Ministers decided, at its meeting on August 28, 1987, to request the opinion of the Minister of Religious Affairs and that of the local rabbinate respecting the candidates of the local authority, as well as the opinion of the local rabbinate respecting the candidates of the Minister of Religious Affairs. On September 20, 1987 the Committee of Ministers received the opinion of the local rabbi, in which he expressed his opposition to the candidacy of the Petitioner (a matter I shall discuss further below). Thereafter the Committee of Ministers held three meetings - on September 30, 1987, October 26, 1987, and November 29, 1987 - at the conclusion of which it determined the composition of the religious council in Yerucham, excluding the Petitioner. The Committee's reasons were set forth in a decision given on November 29, 1987, to which we shall presently refer.

           

            5. We were asked to hold over the hearing of the petition until the Committee of Ministers completed its deliberations, which we agreed to do. In the meantime we decided to join the local authority and the local rabbinate as additional respondents to the petition, as already mentioned. We heard the petition on December 21, 1987, with counsel for all the parties present. On December 22, 1987 we decided to serve a copy of the material filed with the court on the representatives of the local authority who had been appointed members of the religious council by the decision of the Committee of Ministers, since it appeared that if we were to admit the petition and hold the exclusion of the Petitioner from the religious council to be unlawful, one of these four appointees to the religious council might be affected by having to vacate his seat in favour of the Petitioner. We also notified them that if they so wished they could submit their written reply to the petition and the material filed with the court within two weeks. All four representatives submitted their written replies, and the response of one of them is of particular interest here, as will be elaborated below.

 

            6. In the original petition, as already mentioned, the Petitioner complained of the delay in forming the religious council in Yerucham. Mr. Mazoz, learned counsel for Respondents nos. 1 and 2, concedes that the delay was unreasonable, but contends that it was largely attributable to the other two Respondents because they were dilatory in complying with the Minister's request to submit their candidates for the religious council. We have already described the sequence of events and there is indeed no doubt that the inaction of the local authority and the local rabbinate contributed significantly to dragging out the matter. It also appears, however, that both the Minister and the Committee of Ministers were tardy, beyond any substantive justification, in forming the religious council, even after the list of the candidates of the local authority had been submitted, and especially after the beginning of February 1986, when the Committee of Ministers was charged with the task by this court. There can be no justification for the lapse of almost two years until the formation of the Yerucham religious council, even if we take into consideration the workload of the Committee of Ministers in forming religious councils elsewhere too. For fourteen months, from February 1986 until April 1987, the Committee did nothing towards forming the Yerucham religious council, until the lodging of the instant petition. We have listed these details so as to bring the matter to the attention of the competent bodies. Now that the task of composing the Yerucham religious council has been concluded, there is no further need for us to deal with the Petitioner's complaint about the delay.

           

            7. In his summary of arguments, Mr. Mazoz raised a preliminary plea as to the Petitioner's lack of standing before this court, contending thus: Since the period within which the local authority and the local rabbinate were required to propose their candidates for the religious council had expired (according to section 3 of the Law), their right to appoint representatives to the religious council had lapsed and that right passed to the Minister; however, as a result of the Minister's delay in forming the religious council, this court ruled (in H.C. 344/85) that the composition of the Yerucham religious council was to be effected within ninety days, or the matter would be referred to the Committee of Ministers under section 5. The effect of all this, according to Mr. Mazoz, is that because the lists of candidates were not submitted in time by the authorities mentioned in section 3 of the Law, and the entire matter was referred to the Committee of Ministers, there wasn't before the Committee any duly proposed list of candidates whatever, so that it was free to determine the composition of the religious council without being bound by any proposed list of candidates. Indeed, this was expressly stated in paragraphs A and B of the decision of the Committee of Ministers given on November 29, 1987, with respect to the local authority's nominated candidates. Hence, continues Mr. Mazoz, "in these circumstances the Petitioner lacks legal standing, procedural and substantive alike, as regards both the proceedings and the decision of the Committee of Ministers"; and in any event, according to section 5 of the Law, only the three authorities that compose the religious council have standing before the Committee of Ministers -"and the Petitioner does not have any preferred right or standing in relation to any other resident of Yerucham seeking appointment as a member of the religious council". It follows that "the Committee of Ministers did not disqualify the candidacy of someone (the Petitioner) who had been lawfully proposed by the competent body, but decided not to appoint someone whose candidacy was put forward by a body (the local authority) which lacked the legal competence to make appointments at that stage, when that candidacy was also opposed by another body (the local rabbinate) of equal standing (to the local authority)".

 

            8. This argument, for all its subtlety, has no foundation whatever, either in fact or in logic, and Mr. Mazoz wisely did not press it before us.

           

            The religious council is composed of representatives of three bodies - the local authority (45%), the Minister of Religious Affairs (45%) and the local rabbinate (10%), each body proposing its own candidates (section 3 of the Law). The legislature considered this to be the desirable balance for the religious council, which provides local Jewish religious services and which is not elected by the residents in general elections. The three authorities express their opinion concerning all the proposed candidates - "with regard to their fitness to serve as members of the council and to their being properly representative of the bodies and the communities interested in the maintenance of Jewish religious services ... in the locality" (section 4 of the Law). We shall refer below to the qualifications required of the candidates. Where the local authority or the local rabbinate fail to respond to the Minister's request to list their candidates, the Minister may propose those candidates in their stead (section 3(b)), and in the event of any disagreement between the three authorities, the matter is referred to the Committee of Ministers for determination, against which decision the Minister may appeal to the Government (section 5 of the Law). The function of reconstituting the religious council and giving notice of its new composition is imposed on the Minister, as specified in section 6 of the Law.

           

            The Committee of Ministers accordingly does not act in a "vacuum", and it too is bound to adhere to the structure and balance statutorily prescribed for constitution of the religious council, including the role of the three authorities. The function of the Committee of Ministers is to consider differences disclosed between the three authorities and to settle them. In other words, it must receive and study the lists of candidates proposed by each of the three authorities, hear their respective opinions on them, all as specified in the Law, and settle the disagreements that arise among them. The Committee of Ministers so acted, precisely and rightly, in the instant case. At its first meeting, on May 8, 1987, there were present, in addition to the members of the Committee representing the Prime Minister, the Minister of the Interior and the Minister of Religious Affairs, that is, the directors-general of their respective ministries, also the rabbi of Yerucham, the head of the Local Council and a senior adviser to the Minister of Religious Affairs on matters of religious councils (as well as the legal adviser to the Office of the Prime Minister). The chairman of the Committee asked the representatives of the three authorities to submit their nominees for the religious council. The head of the Local Council named the four representatives chosen by that body - including the Petitioner. The representative of the Minister of Religious Affairs also named four candidates, and added that there might be changes after consultation with all the proposed candidates, so as to give proper representation to all the bodies and communities. The local rabbi said that he would submit the name of his candidate within two weeks, after considering the names of the candidates on behalf of the local authority and the Minister of Religious Affairs. At the end of the meeting the chairman of the Committee asked the parties to consult among themselves so as to reach agreement on all the candidates. At the meeting of the Committee on June 9, 1987, the representative of the local rabbinate was named, and the representation of the Shas faction on the religious council was discussed, whilst the representatives of the Minister of Religious Affairs and the Local Council asked for another opportunity to study their lists of candidates. On August 6, 1987 the Local Council announced its final list of candidates, which again included the Petitioner, and the local rabbi was again asked his opinion concerning the list of the representatives proposed by the Local Council and by the Minister of Religious Affairs, respectively. The Committee of Ministers thus acted correctly and in accordance with the provisions of the statute and its purpose, when it called upon the three authorities for their lists of candidates and for their opinions respecting all the candidates listed as proposed members of the religious council. In this context the Petitioner's candidacy was repeatedly put forward by the Local Council to the Committee, and despite changes from list to list of the candidates proposed by the Local Council at different times, the Petitioner's candidacy remained unaffected. The Committee of Ministers decided to reject her candidacy and she was excluded from membership of the religious council for reasons that we shall refer to below. How then can it be argued that the Petitioner has no locus standi before us to complain about the wrong done to her, about the violation of her right to be numbered among the members of the religious council? One of the authorities appointed under the Law to propose candidates for the religious council, indeed the most important of the three, in fact proposed the Petitioner's candidacy, while she now claims that she was unlawfully disqualified. How can it be said that "the Petitioner does not have any preferred standing in relation to any other resident of Yerucham seeking appointment as a member of the religious council"?

 

            No less unfounded is Mr. Mazoz's argument that the Committee of Ministers did not disqualify the candidacy of the Petitioner, but merely decided not to appoint a person whose candidacy was proposed by a body (i.e. the local authority) that had no legal competence to make appointments at the time. As already mentioned, the local authority is a body that seeks to propose its candidates for the religious council (also in relation to the Committee of Ministers), and the rejection of any of its proposed candidates amounts to disqualification of that candidate. If that candidate considers the disqualification to be unlawful, as does the Petitioner here, the doors of this court are open to her and we are ready to hear and consider her petition, like any other petition brought against a governmental body that is claimed to have based its decision on unlawful or extraneous considerations. It is true that the parties to the formation of the religious council are the three authorities specified under section 3 of the Law, and not the proposed candidates. Likewise, the party to an appeal before the Government against a decision of the Committee of Ministers, is a Minister and not the person disqualified by the Committee of Ministers. But any person who has a legitimate interest in the composition of the religious council may petition this court, even if not representing one of the three aforementioned authorities (see H.C. 191/64[2] at 610; H.C. 680/81[3] at 713). Certainly this applies to a person who was a candidate to represent one of the authorities that constitute the religious council and whose candidacy was disqualified.

           

            9. We thus arrive at the essence of the petition: the complaint against the decision of the Committee of Ministers of November 29, 1987 to fix the composition of the religious council in Yerucham without including the Petitioner among its members, despite her nomination as a candidate on behalf of the local authority. Mr. Shofman, learned counsel for the Petitioner, claims that the decision of the Committee of Ministers is invalid, because it disqualified the Petitioner from serving on the religious council on the basis of the unlawful consideration that the Petitioner is a woman; that this amounted to discrimination on grounds of sex which is contrary to law and neither permitted nor justified, also not for purposes of membership of a religious council. All the considerations mentioned in the decision of the Committee of Ministers, the Petitioner contends, are incorrect, unlawful or irrelevant. Mr. Mazoz, on behalf of the Respondents, replies that the exclusion of the Petitioner from membership of the religious council did not stem from any principled objection because she was a woman, but was rooted in the special circumstances of the formation of the religious council in Yerucham, namely: the objection of the local rabbi and the Minister of Religious Affairs to the candidacy of the Petitioner because she was unfit for the office, and the fear that the Yerucham religious council would not function properly, and its regular activity would be stymied, if the Petitioner served as one of its members. Mr. Mazoz argued further that the Committee also took into account the nature of the activity of a religious council, which deals with matters of clear religious-halakhic concern, and the tradition in Israel is that women do not serve as members of religious councils. These are material considerations, according to Mr. Mazoz, and the court should not intervene in a decision based on them.

 

            10. The main points of the argument presented by Mr. Mazoz are detailed in the above-mentioned decision of the Committee of Ministers, and we shall now examine them. It is not disputed that the Committee of Ministers, as a statutory body carrying out public functions, is subject to judicial review by the High Court of Justice (section 15 of Basic Law : Judicature), and like any other public administrative body it must exercise its discretion in good faith, with integrity, without arbitrariness or unjust discrimination, and it must reach its decision on the basis of material considerations. As regards the extent of the intervention by this court, it has already ruled that the discretion is the Minister's, and so long as it is not shown that his considerations lacked foundation or that he exercised his powers unreasonably, the court will not intervene in his actions (H.C. 590/75[4] at 640; H.C. 287/76[5]). So too it has been held (per Landau J., in H.C. 223/76[6]) that

           

            the discretion is vested in the Minister of Religions and where there are no clear and persuasive grounds to contradict the opinion of the person entrusted with the discretion, this court will not intervene in the matter.

           

            These statements are as pertinent to the discretion of the Committee of Ministers in settling the composition of the religious council under section 5 of the Law, as they are pertinent to the discretion of the Minister of Religious Affairs in discharging his own function. Thus it was held in H.C. 568/76[7] at 679-680:

           

            ...The matter of the fitness of the candidates lies initially within the discretion of the three bodies that compose the religious council, and if there are any reservations about the fitness of a given candidate, the matter is entrusted to the discretion of the above mentioned Committee of Ministers. This court does not usually interfere with administrative discretion, even in relation to the election of candidates to a representative body, unless it appears that the act was lacking in good faith or done out of improper motives, or on similar grounds for disqualifying an administrative act.

 

            With these rules in mind we shall now examine the decision of the Committee of Ministers (R/15). After noting that this court (in H.C. 344/85) had referred to it the matter of composing the religious council in Yerucham, the Committee goes on to state (in paragraph B) -

           

...the local authority and the local rabbinate did not propose their candidates for the religious council within the statutory period of time; when the local authority first presented its list of candidates, more than two years late, it did not include Mrs. Shakdiel among them. After that the list of candidates of the local authority was changed twice. In light thereof, the Committee considers, from both the legal and the public interest aspects, that it is not bound to accept the recommendations of the local authority, but must rather consider each proposed candidate individually after consulting with the bodies concerned.

 

            We do not accept this determination. The function of the Committee is to settle disagreements that arise between the different authorities, and the fact that these were late in presenting their candidates, or that one of them changed its list of candidates does not allow the Committee of Ministers to ignore the existence of a particular candidate or to reject his candidacy, unless there is a disagreement with respect to that candidate. In that case the Committee must resolve the matter (as indeed it did with respect to the candidacy of the Petitioner), but it may not refuse to accept a candidate agreed upon by all the bodies that compose the religious council, or rest content with mere consultation between them.

           

            11. The Committee further clarified that it had asked each of the three authorities to propose its candidates as well as give its opinion on the candidates in general. In doing so, the Committee acted correctly. The Committee notes that differences of opinion arose in relation to two matters: the absence of representation for the Bnei Torah community, and the inclusion of the Petitioner in the local authority's list. With regard to the first matter the Committee decided by a majority opinion that this community was adequately represented in the overall appointments to the religious council. As to the nomination of the Petitioner, the Committee gave its decision in these terms:

           

            E. The local rabbi, who was asked by the Committee of Ministers for his opinion of the candidates, objected to the candidacy of Mrs. Shakdiel, for reasons of her unsuitability and the proper functioning of the religious council. It became clear to the Committee that the attitude of the local rabbinate, and in fact also that of the chief rabbinate, is that even if the religious council is in theory an administrative body, it acts in practice as a body that ministers to matters of religious principle touching upon classic halakhic issues, and as such serves as a meeting place for the rabbis of the town and the neighbourhood as well as the scholars of the region. The religious council deals with both the administrative aspect of marriage registration and the halakhic aspect of the fitness of the registration; it deals with the building of ritual baths, but also with the determination of their fitness; it supervises the kashrut or fitness of foods, including the slaughter of animals, the setting aside of contributions and tithes and the problems of the shemitta [sabbatical] year with its related laws; it also deals with burial services and a long list of religious matters, among them the local rabbinate and other religious-halakhic concerns.

 

F. The representative of the Minister of Religious Affairs pointed out that in the forty years of the State's existence it became an accepted tradition among all the agencies concerned that the religious council should be a body with strong ties to the rabbinate and the halakha that guides it; hence an understanding evolved that women would not be nominated for membership in this body. He advised that the matter had meanwhile become the subject of public debate, amidst calls for change, various proposals being raised and examined from a broad perspective with a view to appropriate arrangements for promoting understanding and dialogue, along with respect for the view of the Israeli rabbinate. In the circumstances, the representative of the Minister of Religious Affairs asked us not to consider him to have taken any principled position on the issue, and to confine the issue to the case in Yerucham alone.

 

G. Having regard to the objection of the local rabbi to Mrs. Shakdiel's candidacy, and his reasons, and considering her views and position on the subject of religion and state, as publicized by her in the communications media, the Minister's representative was convinced that her appointment would disrupt and impair the functioning of the religious council in Yerucham. There is a reasonable fear that her appointment will lead to a complete break in relations between the religious council and the local rabbi, stir sharp dispute within the religious leadership in Yerucham, and thus prejudice the proper, orderly and regular functioning of the religious council.

 

H. The Committee agrees that this matter should not be decided on grounds of general principle and that it should address only the specific problem of the Yerucham religious council. From this point of view, the Committee is of the opinion that the arguments of the representative of the Minister of Religious Affairs should be accepted, in the hope that the question of principle will be decided in the near future from a broad and general perspective.

 

I. For the above reasons, and having considered the need for the appropriate representation of all sectors of the local population, the Committee has decided to determine the composition of the religious council of Yerucham as follows: [Here the Committee lists the names of the nine appointees, with the Petitioner's name omitted - Ed.]

 

We shall examine these reasons seriatim:

 

            12. The objection of the local rabbi, R. David Malul, is found in a letter written by him to the Committee (R/14), in which he expressed his opinion of the nominees for the religious council in these terms:

           

I have received the list of candidates for the Yerucham religious council. As a rabbi who has known the entire community in all its diversity for many years, candidate Mrs. Leah Shakdiel also being known to me, I have reached the conclusion that she is unsuited to serve as a member of the Yerucham religious council. It is feared that her membership will disrupt the orderly course of activity of the religious council. Furthermore, she is not properly representative of the public which is interested in the maintenance of religous services in Yerucham. I therefore ask the local council to appoint another representative in her stead, in accordance with section 4 of the Jewish Religious Services Law.

 

            Section 4 of the Law, under which Rabbi Malul's opinion was given, provides that

           

the three authorities referred to in section 3 shall express their opinion of the candidates with regard to their fitness to serve as members of the council and to their being properly representative of the bodies and communities interested in the maintenance of the Jewish religious services (hereinafter referred to as "religious services") in the locality.

 

            The opinion follows the terminology of section 4, and the section is expressly mentioned in its conclusion. The opinion is not, therefore, a halakhic ruling (even were there place for such a ruling with regard to the composition of a religious council), and Rabbi Malul did not purport to act in discharge of a halakhic function. The opinion was given within the frame and under the provisions of the Jewish Religious Services (Consolidated Version) Law, and it is, therefore, subject to scrutiny and review by this court. All the more so once the Committee of Ministers adopted that opinion as one of its reasons for deciding to exclude the Petitioner from membership in the Yerucham religious council .

 

            13. Rabbi Malul did not specify why the Petitioner is not fit to serve as a member of the Yerucham religious council. In fact, his opinion merely reproduces the text of section 4 of the Law. Nor does the decision of the Committee of Ministers offer any explanation of the alleged unfitness.

           

            The functions of the religious council and the qualifications required of its members have been discussed several times in the judgments of this court. Section 7 of the Law, concerning the powers of the religious council, provides:

           

A council is competent to deal with the provision of religious services and for that purpose it may enter into contracts, hold property on hire or lease and acquire immovable property, all in accordance with the items of its approved budget.

 

            The functions of the council accordingly embrace the provision of Jewish religious services. Thus in H.C. 516/75[8], Shamgar P. said as follows:

           

The powers of the council are prescribed in section 7 of the Law, under which it is competent to deal with "the provision of religious services". The Law does not clarify the meaning of "religious services", but the current nature of these services may be deduced, among others, from the regulations concerning submission and approval of the religious council's budget. The schedule to the Jewish Religious Services Budget Regulations, 5728-1968 (K.T. 2177, 1968, 760) lists the religious council's main fields of activity covered by the budget, namely: rabbinate and marriage, kashrut and ritual slaughter, family purity [ritual], burial services, the Sabbath and eruvin and religious cultural activities.

 

And further on, per Shershevsky J., at page 503:

 

...The Law does not speak about religious services in general but about Jewish religious services, that is, about the religious services that are known to be specially and specifically for Jews. What these religious services are, can be learned, inter alia - as my esteemed colleague Shamgar J. has shown - from those listed in the schedule to the Jewish Religious Services Budget Regulations, 5728-1968. These religious services are not a matter of personal outlook, so that their substance can change from time to time according to the subjective view of whoever considers himself competent to express his own so called Jewish outlook, but are matters objectively governed by Jewish law and custom from time immemorial, as such known to be specifically Jewish and distinct from any other religion.

 

            We are thus dealing with known and customary religious services. The religious council is charged with making appropriate budgetary provision for these services (see section 14 of the Law), and is accordingly vested with the requisite powers to discharge its legal functions (section 7 of the Law). The religious services provided by the religious council constitute a substantial part of the municipal facilities in the locality (H.C. 121/86[9], at 466), and it must provide them on call, regardless of sex, worldview, education or any other distinction. The religious council is, therefore, an administrative body created by statute, whose function it is to maintain Jewish religious services and to have an interest in their maintenance, and to assist the local residents in receiving the religious services that they require and wish to have.

           

            To sum up, the services provided by the religious council are of a religious character, but the council is responsible only for their provision and not for making any kind of halakhic decision with respect to them. The latter decisions are entrusted to a body that enjoys the requisite halakhic authority and competence (see the Chief Rabbinate of Israel Law, 5740-1980, section 2, subsections 1, 3, 5, 6, section 5, etc.).

           

            14. The character and functional purpose of a religious council, as outlined in section 4 of the Law, determine also the qualifications required of its aspirant members:

           

Every candidate must have two attributes: personal, that he is a religious person or at least not anti-religious; and public, that he represents a body or community with a religious interest.

(H.C. 191/64[2], at 610.)

 

It is likewise the rule that the interested bodies and communities

 

...be not merely indifferent in the sense they do not care if they [the religious services - M.E.] are provided or not, but must in fact show a positive interest in their existence and that they would be disturbed by the absence of such services.

(H.C. 516/75[8], at 503-504.)

 

            These statements are pertinent both to the bodies represented by the candidates and to the candidates themselves. Candidates for membership of the religious council are not required to have recognized qualifications set by the halakha (see H.C. 568/76[7], at 679-680), as might have been justified were the religious council vested with the power or function of halakhic determination or decision. So indeed has it been contended by the Petitioner (section 36(b) of the petition). Mr. Shofman added in his oral argument before us that if a religious council decided matters of halakha, the Petitioner would not have pressed her petition .

           

            15. We must now examine the Petitioner's alleged unfitness to serve as a member of the religious council in Yerucham, and for what reason she is not properly representative of the public interested in the maintenance of local religious services. It appears from the material before us, and the point is not contested, that the Petitioner is religiously observant, a trained and experienced teacher of Judaic subjects, and that she dedicates her time - in addition to managing her home and raising her four children - to educational affairs in her place of residence. Do these excellent and special qualities not qualify the Petitioner to serve as a member of the Yerucham religious council? The Petitioner states in her petition as follows (paragraph 47):

           

One of the new institutions in the state is the religious council, an institution of great importance in fashioning religious life at the local level. The Petitioner did not confine her candidacy to representing only the women of Yerucham on the religious council. She can certainly bring to bear a new and formerly unrepresented perspective to the council meetings. But as a resident of the locality who is interested in the maintenance of religious services, and as an elected representative of the public, she considers herself a full participant in public activity, and wishes to serve on the religious council as a full partner to decisions in all matters falling within the competence of the council.

 

            These statements are true and sincere, unchallenged by any of the litigants and acceptable to us. Male members of the religious council have never been required to show knowledge of the Torah, scholarship, or strict observance of all the commandments, and never have we heard that the lack of any of these - or even all of them together - should disqualify a man from serving on a religious council. Is it because the Petitioner is blessed with all these virtues that her competence shall be diminished, and she be deprived of her right to serve on the Yerucham religious council? It is clear beyond doubt that the Petitioner is interested in the availability of religious services as defined in the Law, and in the regulations and case law, as already outlined; moreover, that she wishes to devote her time, energy and talent to that end. How can she be regarded as unfit to serve in this capacity and to represent the residents of Yerucham?

 

            Hardly surprising, therefore, is the Petitioner's grave suspicion that the only possible explanation for her "unfitness" to serve as a member of the religious council is the fact that she is a woman, and nothing else. This suspicion is well-founded, since that very explanation was expressly proferred by the competent parties concerned (see the above-mentioned letter of the head of the department for religious councils, of May 6, 1986), and we shall further elaborate the point below.

           

            16. It was also explained, in paragraph E. of the decision of the Committee of Ministers, that even if the religious council is an administrative body in theory, it is in actual practice a body that deals with matters of religious principle, affecting classic halakhic issues. This explanation is unclear and hard to comprehend. The religious council indeed deals with matters of religious principle affecting classic halakhic issues; but does this preclude the Petitioner from contributing to this great and important task her own experience and wisdom? The elaboration of this explanation (ibid, par. E) - that the religious council also deals with the halakhic aspect of kashrut, marriage registration, ritual baths and similar basic questions of halakha - is most perplexing. These are, after all, clearly matters for religious scholars and halakhic decision. Given the usual composition of many of the religious councils throughout the country, are their members, though male, competent and qualified to decide such matters? We have never heard that expertise in the laws of ritual baths and kashrut is a condition for membership of a religious council. Likewise as regards the competence and qualifications of most members of the religious councils to make decisions concerning the setting aside of tithes, the problems of the shemitta [sabbatical] year, and other matters of the kind referred to in the decision of the Committee of Ministers. Mr. Mazoz did not know, understandably so, how to defend this reasoning of the Committee of Ministers, and, with all due respect, better it had been left unuttered. If that reasoning holds good, and that were indeed the situation, then the incumbent members of most of the religious councils in the country should immediately be unseated to make way for religious scholars, knowledgeable in law and rite and familiar with the Talmudic sources.

           

            17. The decision of the Committee of Ministers further states that it accepted the apprehension of the representative of the Minister of Religious Affairs, who was convinced that the Petitioner's appointment "would disrupt and impair the functioning of the religious council in Yerucham", and that there was reasonable ground to fear "a complete break in relations between the religious council and the local rabbi and this would stir sharp dispute within the religious leadership in Yerucham". The reason for this grim forecast was the objection of the local rabbi to the Petitioner's appointment "in light of her views and position on the subject of religion and state, as publicized by her in the media". The representative of the Minister explained that it has been the tradition for forty years, ever since the establishment of the State - because of the strong ties between the rabbinate and the religious council - that women do not serve on this body. Also that for some time now calls have been made for reform and that the matter is under consideration, hence - so it is stated in the decision of the Committee of Ministers - the present decision in the matter of the Petitioner's exclusion from the religious council, should not address general principle but confine itself specifically to the composition of the Yerucham religious council.

 

            18. These apprehensions, some of them convincing to the Minister's representative and the Committee and some of them seemingly reasonable, must be seriously considered and carefully examined. Before doing so we must comment that we find one of the disqualificatory grounds mentioned in the above extract from the decision of the Committee of Ministers, very strange, to say the least. What are those views and perspectives of the Petitioner on matters of religion and state, said to have been publicized by her in the media, which generated the fear of all the anticipated mishaps? In all the abundant material before us we found no mention of these views, no one bothered to explain to the Petitioner and her counsel what was at stake, and certainly no one asked the Petitioner any question about the matter. Even counsel for the state was unable to enlighten the court in this regard. Since we do not know the particulars, it is unnecessary to ask since when do one's views and attitudes on the relationship between state and religion disqualify him from membership of a religious council. We take a grave view of the inclusion of this passage in the decision of the Committee of Ministers, without even bothering to explain the matter. This not only does injustice to the subject, but also injury to the Petitioner, and the controversial statement should never have been made. We return to discuss the fear that the proper functioning of the religious council might be impaired, along with the relations within the local religious leadership.

           

            19. It accordingly seems clear that the above-mentioned fears stemmed from the proposal to include a woman among the members of the religious council. We find no other factor to justify these fears, considering the Petitioner's personality, her way of life and the many virtues with which she has been endowed. One may assume that the Petitioner's gender was the underlying reason for the local rabbi's objection, even if he refrained from so intimating. On the other hand, this ground is perhaps more than hinted at in the reasons given by the representative of the Minister of Religious Affairs, and by the Committee of Ministers, for accepting the contentions of the local rabbi. These reasons refer to a tradition that would exclude women from religious councils, and it is added that the matter is being studied following various calls for reform; also that meanwhile the Petitioner's case was not decided on "principle", the decision affecting only the Yerucham religious council. This is mere semantics without real substance. Since we have found no justification for the Petitioner's disqualification from service on the religious council of Yerucham other than the solitary contention concerning her gender, the decision of the Committee of Ministers to disqualify the Petitioner was necessarily one of principle. In matters such as these it is not the phraseology that counts, nor is the nomenclature assigned by the Committee of Ministers decisive, only the substantive content-which here is clear from the circumstances (see H.C. 392/72[10], at 773). Several events that preceded the decision of the Committee of Ministers further support the conclusion that the Petitioner's gender was the reason for her exclusion from the religious council, as we shall presently see.

 

            20. We have said that a religious council established in accordance with the Jewish Religious Services (Consolidated Version) Law is an administrative body, the composition of which is subject to the pertinent statute and case law (see, in particular, H.C. 568/76[7]). Hence the exclusion of a female candidate from appointment to a religious council, because she is a woman, clearly contradicts a fundamental principle of Israeli law which prohibits discrimination on grounds of gender. This fundamental principle was laid down in the Declaration of Independence, and is among those that have gone beyond recognition in the case law to become enshrined in legislation. I am referring to the Women's Equal Rights Law, 5711-1951, section 1 of which reads as follows:

           

            The law shall apply equally to man and woman with regard to any legal act; any provision of law which discriminates, with regard to any legal act. against a woman as woman, shall be of no effect. *

           

            The Law provides further that it shall not "affect any legal prohibition or permission relating to marriage or divorce" (section 5). Also that it "shall not derogate from any provision of law protecting women as women" (section 6, to which we shall presently refer).

           

            It has been ruled that the Women's Equal Rights Law has the same status as an ordinary statute, with no special standing in the technical sense, so that it can be repealed or amended by an ordinary legislative act of the Knesset (C.A. 337/ 61[11], at 408-409). Nevertheless, by substance and character -

 

            ...This Law is not like any other ordinary Law! We are looking at an ideological, revolutionary Law that changes the social order; its name and its first "programmatic" section indicate that - except for the reservation in section 5 - the Law sought to uproot any matter in which women suffer a legal disadvantage under existing law...

(Per Silberg J., H.C. 202/57[12], at 1537.)

 

            The Women's Equal Rights Law has been given a broad interpretation, in light of its substance, and the words "legal act" in its first section are intended to refer to any legal act affecting a woman, whether she is the subject of the act or its object. The Law guarantees women

           

... equal status before the law not only in terms of competence with regard to an "act", in the narrow sense of the word, but in all legal respects.

(C.A. 337/61[11], at 406, per Witkon J.)

 

            As aforesaid, there may be situations where the principle of equality between the sexes will not apply, for instance, in matters of prohibition and permission relating to marriage and divorce, or where the purpose of the statute is to protect women as women. In the words of Witkon J. (ibid. [11], at 407):

           

            When we seek to examine the meaning of this provision in light of the provision of section 1 of the Women's Equal Rights Law, we must emphasise the word discriminate. Discrimination - as this court has often stated - does not mean every difference or distinction in the law or in its application to different persons, but only a difference that is based on irrelevant distinctions. "The essence of discrimination is that it distinguishes between different people just because they are different, even though the difference between them is immaterial and does not justify the distinction" - so it was held in The Committee for the Protection of Nazareth Lands v. Minister of Finance, H.C. 30/55. And consider further Weiss v. The Legal Council, H.C. 92/56, as well as other sources.

 

And in the words of Agranat P. (F.H. 10/69[13], at 35):

 

This court has held more than once that one must always distinguish - both for the purpose of statutory interpretation and as a standard for the reasonableness of the administrative action of a public authority vested with discretionary power - between wrongful discrimination (hereinafter "discrimination") and permissible distinction. The principle of equality, which is none other than the converse side of the coin of discrimination, and which the law of every democratic country aspires to realise for reasons of justice and fairness, means equal treatment of persons between whom there is no substantial difference that is relevant for purposes of the matter in issue. If they are not treated equally there is discrimination. On the other hand, if the difference or differences between different people are relevant to the purpose under discussion, then it will be a permissible distinction if they are treated differently for that purpose, so long as the differences justify this. The concept of equality in this context thus means relevant equality, and for the purpose concerned, requires an equality of treatment for those characterised by the situation mentioned above. On the other hand, there will be a permissible distinction if the difference in the treatment of different persons stems from their being in a situation of relevant inequality, having regard to the purpose of the treatment, just as there would be discrimination if it stemmed from their being in a situation of inequality that is not relevant to the purpose of the treatment.

 

            Classic examples, in legislation and in the case law, of such distinctions stemming from real differences between men and women, are those relating to pregnancy, giving birth and nursing (see the recent Equal Employment Opportunities Law, 5748-1988, section 3).

           

            One may note the gap in some areas between the declaration as to women's equal rights and the actual implementation of this principle. Opinions are also divided as regards a limitation upon privileges for women, between advocates of special treatment and those advocating greater equality. The matter has been extensively discussed and researched (see, for example, R. Ben-Israel, "Equal Employment Opportunities for Women", 4 Tel Aviv University Studies in Law (1978-79) 142; F. Raday, "Equality of Women and Israeli Law", 27 The Jerusalem Quarterly (1983) 81; H. Shahor-Landau, "Equality for Working Women in the EEC Law and Lessons for Israel", 13 Mishpatim (5743-44) 457 (in Hebrew)). Some of these matters have been regulated by recent legislation of the Knesset - among others, the Equal Retirement Age for Male and Female Workers Law, 5747-1987, and the Equal Employment Opportunities Law.

           

            21. Can one justify the disqualification of the Petitioner from membership of the religious council of Yerucham, despite her lawful nomination by the local authority, on one of the above mentioned grounds for disregarding the principle of women's equal rights? The answer is negative. Discrimination on the basis of religious-halakhic considerations is allowed in matters of marriage and divorce, but such considerations do not operate here. Counsel for the Petitioner agrees that if the religious council were a halakhic body with the function of deciding halakhic questions, the candidates nominated for such a body should meet the requirements of the halakha and the qualifications for halakhic decision-making. However, the religious council is not such a body, but rather an administrative body charged with satisfying religious needs. It follows that even if a woman could not serve on such a body from the halakhic point of view (which is not so according to the opinions of many great scholars, as we shall presently see), this consideration does not pertain to the composition of an administrative body, where the qualifications of its members must be determined solely according to the relevant legislation and case law of the general legal system.

 

            Needless to say, the Petitioner was not disqualified from membership of the religious council in order to protect her as a woman, and her disqualification accordingly constitutes a distinction that is irrelevant to her being a woman, amounting to wrongful discrimination.

 

            22. We must still consider whether those grave fears expressed by the representative of the Minister of Religious Affairs, and in the decision of the Committee of Ministers, serve to outweigh the interest in the fundamental right of women's equality. For we adhere to the rule that fundamental rights are not absolute but relative, that their existence and preservation call for a proper balance between the different legitimate interests of two individuals or of the individual and the public, given that all the interests are founded in and protected by the law (H.C. 148/79[14], at 172; P.P.A. 4/82 (M.A.) 904/82) [15], at 210; H.C. 114/86[16], at 490-491).

 

            After due consideration and deliberation I conclude that given the issues and the facts in the present case, the scale does not tip in favour of those grave fears pleaded by the Respondents. Non-discrimination against a woman, because she is a woman, is a fundamental principle of the legal system in Israel. To warrant the subjection of this fundamental principle to such a balancing process, it should have been contended, at least, that a woman's membership of a religious council is forbidden from a halakhic point of view, with the result that such an appointment would bring the work of the religious council to a standstill. Had this argument been made, there would have been room to seek a balance and compromise between the two poles. For we are concerned here with a religious council which, although a statutory, administrative body and therefore subject to the statutory principles, is also a body whose functions, and its functionaries, are closely associated with the world of the halakha, and it would have been proper to try and bridge the two opposites. None of the Respondents, however, contended that it is forbidden for women to serve on the religious council, nor was this mentioned in the decision of the Committee of Ministers. Even the local rabbi, the only person to object to the inclusion of the Petitioner in the religious council, does not explain his objection on grounds of a halakhic prohibition, but in terms of unsuitability and non-representation of the bodies interested in the maintenance of the religious services. The Minister of Religious Affairs and his representative on the Committee of Ministers spoke of a "tradition", evolved from an understanding over a period of forty years, "not to propose women as candidates for membership in this body", hence - so it was said in the decision of the Committee of Ministers - the objection of the Minister, and the objection

 

of the Committee which adopted his position, do not constitute a principled decision not to include women in the religious councils. It is true that at an early stage, on May 6, 1986, the head of the department of religious councils wrote to the Petitioner that "it is not possible" for a woman to be a member of a religious council, but this style of speech changed afterwards. Following the appointment of a new Minister of Religious Affairs, the Petitioner was invited to the Minister, and was informed by his adviser on women's affairs, Mrs. Lichtenstein (paragraph 27 of the petition) -

 

... that the Minister had decided to agree to the appointment of the Petitioner, but the Petitioner was asked to refrain from making the decision public for two weeks. Mrs. Lichtenstein asked the Petitioner to delay the filing of her petition [before the High Court of Justice - M.E.] until March 11, 1987, saying that by this date the matter would be taken care of. The Petitioner agreed to Mrs. Lichtenstein's requests.

 

            The Petitioner attested to the truth of these facts and they were not refuted by the Respondents. Why was the promise made to the Petitioner by the Minister of Religious Affairs, through Mrs. Lichtenstein, not kept? The Petitioner answers this question in another affidavit, submitted in M.A. 279/87, on July 21, 1987, as follows:

           

2. On March 9, 1987 there was a meeting of the Chief Rabbinate Council, and the question of the service of women on religious councils was raised at this meeting. The Chief Rabbinate Council adopted a resolution that women are not allowed to serve on religious councils.

 

3. This decision was reached a short while before the date on which the Minister of Religious Affairs (Respondent No. 1) was supposed to announce his consent to my appointment to the religious council (paragraph 27 of the Petition). Respondent No. 1 did not announce his consent to the appointment as promised, and the petition was filed on March 11, 1987.

 

4. On a date unknown to me, Respondent No. 1 [the Minister of Religious Affairs - M.E.] asked the Chief Rabbinate for clarification of the matter. The answer of the director of the Chief Rabbinate Council, dated April 9, 1987 - attached as Appendix P/1- was as follows:

 

In response to the question posed by the respected Minister in the matter of Mrs. Shakdiel as a member of the Yerucham religious council, I hereby notify you that the Chief Rabbinate Council rejected this notion and decided that women are not allowed to be permanent members of the religious council.

 

This opinion of the Chief Rabbinate of Israel is an opinion of Torah [religious learning] like all the religious laws prescribed by our rabbis over the generations, and fall within the halakhic rule of compliance with "all that they instruct you".

 

5. It was the decision of the Chief Rabbinate Council, apparently, that prevented Respondent No. 1 from realizing his intention and expressing his consent to my membership of the religious council. This appears from an interview given by Respondent No. 1 on the I.D.F. radio station, on July 9, 1987. The interview followed upon the decision of Respondent No. 1 to appoint the Tel-Aviv Municipal Council's representatives to the electoral assembly for the Tel-Aviv Chief Rabbi, and to include only men on that list. The full interview, as recorded by the I.D.F. radio station, is attached as Appendix P/2, and excerpts from it follow:

 

Z. Hammer [Minister of Religious Affairs]: ...I firmly believe that a woman can and should contribute to the patterns of religious life except in matters in which the halakha does not so permit.

 

Y. Roeh [Interviewer]: ... Such as this electoral body?

 

Z. Hammer: ... No, no, no! The halakha - I do not think it prohibits [a woman's] service on the electoral body or membership of a religious council. But the point is that for many years it has not been so, and when it is necessary to break through in a new direction, there are difficulties ... And I would say that whoever really wants women to enter the sphere of religious life and its administration - that is, within the limits of the halakha, of course - must be patient and help us do it in a way that will be acceptable to the rabbis as well as the chief rabbinate.

 

            The opinion of the Chief Rabbinate was not included by the Respondents in the material before us, nor did they rely upon it in their arguments, perhaps for the reason that even the Respondents do not believe there is any halakhic prohibition against women serving on a religious council, as was clearly acknowledged by the Minister of Religious Affairs in the above-mentioned interview excerpts (and which he did not deny). In fact, as we shall see below, there is much support for the view that there is no such halakhic prohibition. Given this state of affairs, we regret to say that there is no need to exercise further patience and meanwhile deny the Petitioner her fundamental right not to suffer discrimination, all contrary to the provisions of the Women's Equal Rights Law.

 

            23. We hope and trust that the orderly functioning of the religious council in Yerucham will not be impaired by the inclusion of the Petitioner in this body, and that this will not lead to a "complete break" between the religious council and the local rabbi, nor create a dispute within the Yerucham religious leadership. The local rabbi apprehended that the Petitioner might not be fit to serve as a member of the religious council. I am sure that once the respected rabbi comprehends the laudatory intention and acts of the Petitioner to promote the religious services in Yerucham, he will have only praise for her activity - as the wisest of all men said: "many daughters have done valiantly, but you excel them all" (Proverbs, 31: 29). In our times, when Jewish women are educated and knowledgeable, and most of our children's education - even in the religious schools - is entrusted to female teachers, it is an accepted daily occurrence that men and women discuss together matters of schooling and education around the same table. And there is no reason, whether on ground of halakha, tradition or custom, for the Petitioner not to sit at the table of the discussions of the religious council. Is there anyone more interested than she in the religious fitness of food products and the ritual baths, in the maintenance of synagogues and the dissemination of religious culture?

           

            24. I find confirmation for this expectation-assumption in the letter written by Rabbi David Milgrom in response to our query raised at the end of the hearing. Having regard to the possibility that the petition might be admitted and the order nisi made absolute, we approached the four representatives of the local authority who had been named as members of the religious council in the decision of the Committee of Ministers, asking for their reply, if any, to the petition and material submitted to the court. We did so since one of the four representatives of the Local Council would be prejudiced by having to give up his place on the religious council in favour of the Petitioner, should we hold her to have been unlawfully disqualified. We are especially interested in the detailed response of Rabbi David Milgrom, who wrote, inter alia, as follows:

           

            2. If the order nisi is made absolute in the sense that the Petitioner is included in the composition of the Yerucham religious council, this will be achieved at the expense of excluding one of the members named by the Committee of Ministers.

 

            3. I submit that in such case it would be right to exclude one of the representatives of the Minister or, alternatively, a member of the Labour party proposed by the local authority.

            …

 

            5. I wish to emphasise that in addition to my representing the Shas party on the religious council I also represent the Bnei Hatorah community in Yerucham, in all about one hundred orthodox families who live in Yerucham and I am their sole representative. Naturally, the orthodox community has an especially strong interest in the local religious services.

           

            For this reason Rabbi Milgrom submitted it would be proper for him to continue serving on the religious council, even if the court decided that the Petitioner be reinstated, and that some other representative of the Local Council on the religious council should give up his place on this body, the number of whose members cannot be more than nine. The substance of this submission must be considered by the Committee of Ministers, and we express no opinion on the matter. But we do learn, indirectly, that Rabbi Milgrom, who represents Shas and the ultra-orthodox community in the locality, sees nothing wrong in serving on the religious council together with the Petitioner, if it be so decided; moreover, he wants us to determine that he shall remain a member of the religious council, together with the Petitioner. Rabbi Milgrom is not afraid of disruption or paralysis of the religious council on account of the Petitioner's membership, nor is he apprehensive of any prohibition against serving on a religious council which has a female member. And if this is the view of the representative of Shas and the orthodox community of Bnei Hatorah in Yerucham - and he appears to be the only person bearing the title of rabbi on the proposed religious council - why should we fear that the other members of the council, or the public, might disrupt and paralyse the orderly functioning of the religious council should the Petitioner be elected to serve on it?

           

            25. In summary, it is clear without doubt, from the reasoning in the decision of the Committee of Ministers and from the opinions of the local rabbi and the Minister of Religious Affairs, that their objection (principled or otherwise) to the inclusion of the Petitioner in the composition of the Yerucham religious council, stems from the view of the Respondents that women should not serve as members of this body. That is the underlying view, though some of the Respondents believe that this situation should prevail as a matter of principle in the future too, while some of them hold that it ought to be so for the time being, until it becomes possible to change this state of affairs. Either way, this disqualification and such considerations are improper, and they invalidate the decision of the Committee of Ministers to disqualify the Petitioner from membership of the religious council. The initial refusal to include the Petitioner as a member of the religious council because of her gender was stated clearly and bluntly in the letter written to her by the head of the department for religious councils on May 6, 1986. The refusal was later repeated in somewhat more restrained language by the Minister of Religious Affairs then in office, until finally the incumbent Minister of Religious Affairs has stated that there is no principled halakhic obstacle to women serving on a religious council, though he requests patience until agreement is reached upon the matter by all the parties. It appears that the Committee of Ministers also adopted this position of the Minister of Religious Affairs. This denial of the Petitioner's fundamental right, in anticipation of a process of "maturation" over an unknown and indeterminate period of time (see Minister Hammer's speeches in the Knesset on December 2, 1986 and October 28, 1987) is unjustified, and there is no foundation for disqualification of the Petitioner from service on the religious council.

 

            26. We intimated above that there is strong support within the halakhic framework itself, for the view that the Petitioner, as a woman, should not be barred from membership of a religious council. We shall now elaborate (cf. Me'iri, Sanhedrin 33a). The issue merits inquiry, richly coloured as it is by values that determine the character of the family and the image of society, and it impinges on an area in which the law and the halakha meet. We shall accordingly seek to elucidate the matter as it is reflected in the writings and rulings of the halakhic scholars and thinkers.

           

            The question whether, and to what extent, a woman may serve in public office has been sparsely addressed as such in the talmudic halakha (see e.g. B.T. Berakhot 49a, in relation to women not bearing the crown; and see our discussion below on Sifre, Deutoronomy, Parashat Shoftim, para.157, and Pesikta Zutarta, Pareshat Shoftim). In the Bible, the Talmud and later, there is mention of distinguished female figures - prophets, judges, queens, wise and scholarly (see S. Ashkenazi, Women in Jewish Perspective (2nd ed., 1979/80), especially Part I, pp 115-142; "Women in Jewish Sources", in Hagut - Anthology of Jewish Thought (Religious Culture Department, 1982/3) 25-26). These were isolated phenomena, while the guiding rule - one of great significance in the edifice of the Jewish family over the generations - was: "All glorious is the king's daughter within (the palace)" (Psalms, 45:14), that is, a woman finds respect in educating her children and managing her home, and it is not her way to be involved in public affairs. We find a first, clear and concise expression of this theme in Maimonides' comment on Deutoronomy 17:15 "You shall set a king over you" (Yad, Kings 1:5):

           

            One does not place a woman on the throne, as it was said: "a king over you"- and not a queen, and likewise all offices in Israel - only a man may be appointed.

           

            Maimonides' generalisation with respect to "all offices in Israel" (which might derive from the Sifre commentary on the above verse in Deuteronomy, according to the version before Maimonides - see infra), was disputed among many of the Rishonim* (see infra), but his opinion was accepted in practice.

 

            27. An interesting and wide-ranging debate on the subject took place at the beginning of the present century, in connection with granting women the right of franchise. In our present context the question arose primarily in relation to elections to the institutions of self-government of the Jewish community in Palestine just after the end of the first world war, as well as in different communities in the Jewish Dispersion. It might be recalled that until then women had been denied the right to vote under most world regimes, and only during the latter half of the second decade of this century were women awarded full rights, to elect and be elected, in most of the states and provinces of the United States and Canada, in Russia, England and Germany. In some countries, such as France, this right was awarded only in 1944, and in Switzerland in 1971 (See: L.H Tribe, American Constitutional Law (Mineola, 2nd ed., 1988) 1599; O Hood Phillips and P Jackson, Constitutional and Administrative Law (London, 7th ed. by P. Jackson, 1987) 187; P.W.H. Hogg, Constitutional Law of Canada (Toronto, 2nd ed., 1985) 723; J.F. Aubert, "The Swiss Federal Constitution" Introduction to Swiss Law (Deventer, ed. by F. Sessemontet and T. Ansay, 1983) 1518; Encyclopedia Britannica (vol. 23, 1971) "Women, Legal Position of", at 623-627). We shall refer to this aspect again below. As to the views of the rabbinical scholars in Palestine and in the Jewish Dispersion, these fall into three camps. The majority opinion was that women should not be granted election rights, whether active - that is, the right to vote, or passive - that is, the right to be elected. This was the view of most of the halakhic scholars in the Palestine community (see M. Friedman, Society and Religion (Ben Zvi Publications, 1977/ 8) 146-184) and of the outstanding scholars in the Diaspora; some of the scholars opined that women have active election rights but not passive ones; and a third camp was of the opinion that there was no halakhic impediment to women exercising both active and passive election rights, that is, they are permitted both to vote for and to be elected to public and governmental office.

           

            28. It may be noted that on this matter Rabbi Avraham Yitzhak Hacohen Kook, at the time chief rabbi of Jerusalem and later chief rabbi of Palestine and founder of the chief rabbinate, belonged to the camp that denied women both active and passive election rights. He expressed his view on three occasions in the context of the great debate waged at the time. (See Collection of Essays by Rabbi Avraham Yitzhak Kook (Goldhartz Fund Publications, Jerusalem, 1983/4) 189-194: responsum to the Mizrahi Confederation Committee of 11 Tishrei 5680-1920; also "general response to the many persons who have asked me" of 10 Nissan 5680-1921; and the third time, in "Decision of the Conference of Rabbis of Eretz Israel" of 26 Nissan 5680-1920, which was signed by Rabbi Kook alone. As to variant versions of this decision, see Friedman, op. cit., at 165-167)). Rabbi Kook discussed the matter from three perspectives (Essays, ibid., at 189):

           

a. in terms of the law; whether the matter is permitted or prohibited;

 

b. in terms of the public welfare; whether the people stand to benefit from affirmation of the matter, or from its negation;

 

c. in terms of the ideal; whether our moral cognition negates the matter or affirms it.

 

We must clarify our attitude to these three standards, since I wish this inquiry to encompass people in all walks of life: those wholehearted believers for whom the halakhic ruling is decisive; those for whom the welfare of the nation is decisive, and those who are concerned mainly with the moral ideal per se.

 

            From the legal perspective, Rabbi Kook saw two reasons for opposing feminine participation in public office:

           

Legally speaking I have nothing to add to the statements of the rabbis who preceded me:

 

a. In the Pentateuch, the Prophets and the Writings, in the halakha and the aggada, we hear a single voice, that the duty of the regular public service is imposed on the men because "it is the nature of man to subdue but it is not the nature of woman to subdue" (Yevamot 65b) ... and "all her glory is within (the palace)".

 

b. The endeavour to avoid a mingling of the sexes in public gatherings passes as a beaded thread through the entire Torah, so that the law is certainly against any innovation of public leadership that necessarily leads to a mingling of the sexes in public, in a group or conference, in the regular course of public life.

 

            As to the public welfare, Rabbi Kook advocated maintenance of the connection with the sources of Judaism and the Bible, in the name of which the nations of the world recognized at that time the rights of the people of Israel to the Land of Israel (ibid., at 189-190). And as regards the ideal status of women - that was a vision for the future "of women and mothers, in life in general and in particular ... but this future vision is still entirely unreflected in contemporary cultural life which is rotten from within, though seemingly smooth on the outside" (ibid., at 190).

 

            The above response is characteristic of this great spiritual leader, who integrated in his decisions, along with the halakhic sources, a philosophy on the rebirth of the nation and its return to the Land of Israel, together with a vision for the future, according to his perspective and understanding. He was convinced that it was for the good of women not to be dragged into the whirlpool of public life, and likewise for the good of the nation returning to its homeland. In this manner he sought to persuade also those for whom the welfare of the nation or the moral ideal, rather than the strict halakha, was decisive.

 

            In the two other sources mentioned Rabbi Kook expands the discussion, adducing further reasons for the position he takes. He intimates that even the nations of the world were only then beginning to accept "this modern innovation" of women's suffrage, which was incompatible with the world of Judaism and the special character of the Jewish family. Rabbi Kook perceived the matter thus: (ibid., at 192):

           

The psychological reason for this demand, the call for public elections in the name of women's rights, derives mainly from the miserable status of the masses of women in these nations. If their family situation was as serene and dignified as it generally is among the Jews, neither the women themselves nor the men of science, morality and lofty ideals would demand what they call election "rights" for women, according to the usual formula, which is likely to disrupt matrimonial harmony and eventually must necessarily lead to serious deterioration in national and political life in general. And so, out of the despair and bitterness resulting from the crudeness of men in spoiling family life, it is thought to find succour in some kind of public power of proxy, so to try and mend their faltering domestic situation with little concern for the further stresses thus added, since the whole edifice is already so breached. We have not and shall not stoop to this level, and would not want to see our sisters in such an inferior status. The Jewish home is still a hallowed institution, and we should not dim the radiance of our sisters' lives and allow them to become troubled by the clamour of opinions and controversies in matters of elections and politics.

 

The Jewish woman bases her rights on the delicate content of her special spiritual character, rather than on cut and dried laws formulated in ready moulds, which to her are like iron constraints quite unsuited to her delicate constitution, and which, by her nature, she is generally not strong enough to use, when they cannot even compensate for the damage wrought at the recesses of the spirit that encompass and govern all areas of life.

 

The family is the foundation of our nation, the House of Jacob will build the people of Israel. We are preparing the edifice of the nation - according to our spiritual nature. We are always ready to propound a moral duty to hear the opinion of the woman in every Jewish home, also in relation to general, social and political questions. But the agreed view must necessarily issue from the home, the family as a whole, and the man, the head of the family, is charged with the duty to transmit and make public the family view.

 

            Here too Rabbi Kook notes that there are "great kingdoms that have not yet progressed in this area" and have not granted voting rights to women (ibid., at 193). In his eyes, the meaning of women's suffrage is "to dim the radiance of our sister's lives" with the bitterness and clamour of political life, and this "clamour" and its attendant "obsequies" will lead to "the ruination of domestic harmony".

           

            It is interesting to note the comment made years later by Rabbi Kook's son and spiritual heir - Rabbi Zevi Yehudah Kook, head of the Merkaz Harav Yeshiva - on his father's views concerning women's voting rights (Talks of Rabbi Zevii Yehuda Kook, edited by S.H. Avineri (Ateret Kohanim Yeshiva Publication)):

           

Father, of blessed memory, objected to including women in the election process. The writer Azar complained about this in a small monograph, claiming it was not democratic and respectfully asking my late father to reconsider. The Gaon, Rabbi Haim Ozer [Grodzinski - M.E.] wrote a long paper objecting strongly to women's suffrage, but the word "forbidden" did not appear in it. It is true that those who printed the notice put that word in the heading, but it does not appear in the text itself, because "forbidden" is a responsible term. My late father likewise objected, but did not use the word "forbidden".

 

(See also Friedman, op. cit., at 166.)

 

            29. Rabbi Kook's first above-mentioned letter was addressed to the Mizrahi Confederation, among whose spiritual leaders there were at that time indeed many who advocated giving women election rights, both active and passive. We shall mention here several of these leaders. Rabbi Y.L. Maimon (Fishman), writer and research scholar, later to become the first Minister of Religious Affairs in the State of Israel, wrote:

           

The Mizrahi Confederation in Eretz Yisrael acknowledges the value of the participation of Jewish women in the rebirth of our nation and does not object at all to giving Jewish women the right to vote, neither as a matter of principle, nor on religious grounds.

(Do'ar Ha'yom, 5 Shevat 5680, 25/1/1920; Friedman, op. cit., at 151; note 14; and also at 166.)

 

            Rabbi Y. Nissenbaum defended this position enthusiastically at the second Mizrahi Conference, held in Warsaw in April 1919 (see Hagut, supra., at 77-81). After discussing the political motives affecting the wide controversy over women's suffrage at the time, he stated (at 77-78):

           

For us this question has only national and moral content. The Hebrew people is now in such a situation that it needs to muster all its forces, and it cannot forgo at this time one half of its forces, its women and daughters, leaving them out of all public and national endeavour. All the more so, since this half, consigned as it is to such idleness, is attracted to alien work which only impedes all our Hebrew work! This is the national aspect of our women's issue. And it also has a moral aspect. Now that many Hebrew women have roused themselves to the national resurgence, and seek to participate in all the efforts of our community and our nation, our moral sensibility requires that they be given their sacred wish: to dedicate their powers and talents to their nation. Do men need a national life and women not? Thus we would seem not to have any question about granting women the right to vote. If during all the years of our exile the lives of men and women were equated for the purpose of all penalties, all laws and all deaths, why should not their lives be equal in this period of revival for the purpose of all rewards, all rights and all the nation's work of redemption? ...But among us, followers of Mizrahi, as among orthodox Jews in general, this vital need raises two other questions. The first is religious - whether giving women the right to vote does not violate some religious law that cannot be disregarded; and the second is moral - whether this does not violate some other moral sensibility that should not be taken lightly. This would seem to be the women's issue that is on our agenda and requires a clear and decisive solution.

 

            After reviewing the role of women in Jewish history, Rabbi Nissenbaum went on to say (at 80-81):

           

            It is true that the Sifre comments: "set a king on you, a king and not a queen", and that Maimonides adopts this Sifre as the halakha, even expanding it to say: "likewise all offices in Israel, only a man may be appointed" (Yad, Melakhim chapter 1). But this ruling of Maimonides was not clear to our scholars in France, and they did not decide categorically that "a woman is disqualified from judging" (see Tosafot to Baba Kama 15, Niddah 50, and elsewhere). And from these scholars we may also learn that a woman may competently be chosen to participate in the deliberations of the learned men who clarify the laws, and perhaps even the deliberations of the law makers. Thus they say with respect to Deborah the Judge, that "she used to teach them, the people of Israel, the laws", and accordingly, ipso facto she is competent, by all opinions. Or they say, "perhaps the sons of Israel accepted her over themselves". If so, is "acceptance" greater than "election"? And if a woman is elected as a judge or legislator, perhaps her "acceptance" pertains not only to those who voted for her, but also to the others, for even Deborah was not accepted by all the people of Israel, and she nevertheless judged in her song all those who did not heed her call to fight for the Lord...

 

But I have inadvertently been drawn into the portals of the hsalakha, which I did not think to enter this time but to leave the matter to our esteemed rabbis. If in terms of the halakha the rabbis find no impediment to giving Hebrew women not only the active right to vote - which has already been permitted by the Hassidic rabbis who called upon their followers, and their wives and daughters to take part in the elections to the Polish Sejm (and "should the priest's wife be revered less than the innkeeper's?") - but also the passive right to be elected, then neither, in my opinion, is there any impediment to granting this right on account of our inherent sense of modesty. True modesty will not be affected in any way by the fact that women too participate in meetings and express their views in the governing bodies at the communal, municipal, regional or central levels, or in a Hebrew parliament.

 

            A blunt opinion was expressed at the same time and in the same spirit by Rabbi Y.L Zlotnik (Avida), distinguished research scholar (see A. Rubinstein, Movement in Times of Change (Bar Ilan Publications, 1980/1), at 159-161):

           

I shall now relate to one question that is facing the Mizrahi both inside and outside Eretz Yisrael. This is the question of the right of women to elect and be elected to community and public office.

 

According to the view and opinion of the leaders of official Judaism, it is altogether impossible to agree from the ultra-orthodox perspective to treat men and women equally in relation to these rights, but many people and many rabbis hold a completely different view.

 

This question is now a very actual one. The matter was deliberated in Eretz Yisrael when they wanted to hold a constituent assembly of the local Jews, and they were compelled to accept the position that women could only vote and not be elected. The question is now on the agenda in our country in relation also to elections for the community institutions. It would certainly be easy and convenient for those who wish to show that tradition and the old order are precious in their eyes, to decide dispassionately that women should not be given the right to vote. But anyone who gives the matter serious thought will not rush to make such a decision .

 

It is understandable that a man who lives according to tradition and the ancient customs, accepted and sanctified by the nation with the passage of time, will find it difficult to agree immediately to such a fundamental change in the social order. Nevertheless, a responsible (Mizrahi) Confederation cannot treat these burning questions lightly and solve them superficially without considering all the relevant material.

 

If we look at the matter closely we will find that there is no moral ground to deny women their right to express an opinion on public and community affairs. Factions of the ultra-orthodox community are also known to understand this, hence their eventual agreement to give women active election rights. On the other hand, they do not think it possible for women to have passive election rights, that is, to be elected, because it is not possible for an ultra-orthodox Jew to sit at one table with a woman, this being contrary to the Hebrew modesty.

 

But let us look at things as they really are: even most ultra-orthodox Jews find it impossible in their private and social lives to avoid completely the society of women. There are only a chosen few who are truly capable of averting their eyes from seeing evil; and I can indeed understand and wholeheartedly respect the righteous man who states that because he cannot sit at one table with a woman, he waives his passive election right and does not seek to be elected ... But I cannot understand at all the moral logic of one who declares: "Because I do not want to sit together with a woman, therefore the woman shall not be elected, only myself alone'. Where is the moral content of such a view and statement? And if we cannot rob the individual woman of her right to vote for whoever she wishes, how can we deprive thousands of their right if they find that some woman is the fittest of all for a particular position?

 

And the Mizrahi should make a special effort to enlist the assistance of all sectors of the nation in its struggle for revival. How shall the Mizrahi allow the exclusion of all girls and women from the task of the nation's renascence and from public and community activity? If the Mizrahi were only a small self-contained and self-sufficient group, without outside links and interests, it could restrict its work to its own circle of members alone. But if the Mizrahi wishes to influence other segments of the people, how can it exclude girls and women from public work? After all we can see that the time has long passed since "All glorious is the King's daughter within (the palace)". The Hebrew woman no longer wants to leave all the matters of life and the nation in the hands of the men alone, and if the Mizrahi wants to fight against her, she too will join the struggle to overcome the Mizrahi. We cannot turn back the march of life, so who will gain from this vain and pointless war - the Torah? Judaism?

 

Even in my imagination I cannot picture a Jewish state with laws that limit the rights or constrain the activities of any person.

 

            30. At that time many halakhic scholars in the Diaspora believed that women should not be granted suffrage, among them Rabbi Haim Ozer Grodzinski, of Vilna, Lithuania, a leading responsa writer of his generation, and Rabbi Israel Meir Hacohen of Radin, near Vilna, known as the Hafetz Hayyim, foremost halakhic decider of his generation (see the comment of Rabbi Zvi Yehudah Kook, supra, and of Rabbi Yehiel Weinberg, infra).

           

            Another interesting contemporary debate took place between Rabbi Professor D.Z. Hoffman, head of the Berlin Rabbinical Seminary, an important responsa writer and Judaic research scholar, and Rabbi Dr. Ritter, chief rabbi of Rotterdam. (The debate is quoted in Jeschurun, vol. 6 (a German-language journal, edited by Rabbi Yosef Wohlgemut, 1919) - Hoffman's article at 262-266, and Ritter's at 445-448. Hoffman's article was translated into Hebrew, in The Kibbutz in the Halakha (collection of essays, Sha'alvim Publications) 286-290, but the extracts below are my own translation). As already mentioned, the question of women's suffrage arose at the time also in relation to the leadership of the Jewish communities in the Diaspora (see Friedman, op. cit., at 150; Rubinstein, op. cit., at 159, note 3, and the bibliography cited), and the above debate apparently took place in that context. Rabbi Hoffman's view was (Jeschurun, loc. cit., at 262) -

                

   According to the Talmudic halakha and the later scholarly statements, women should not be granted passive election rights. Active election rights can be given to women once the community so decides.

 

            Rabbi Hoffman based his negation of passive election rights on Maimonides' above-mentioned statement (Yad, Melakhim, supra), which he believed founded on Sifre, Deutoronomy, Shofetim, para. 157, according to a version that was possibly before Maimonides, considering the version found in Pesikta Zutarta (see Jeschurun, loc. cit., note no. 3; and see also the above passage from Sifre, Deutoronomy, in ed. Rabbi Meir Ish Shalom, and notes thereto, as well as in ed. Finkelstein-Horovitz, and notes). Rabbi Hoffman considered this view founded also on other laws, among them that a woman cannot serve as a dayyan [a religious court judge] (shulhan Arukh, Hoshen Mishpat, 7:4). The latter rule is subject to a difference of opinion, the matter depending on the circumstances (see also the commentaries to the Shulhan Arukh on this rule, and specifically in Halakha Pesuka (Harry Fischel Institute Publications, 1961/2) 47-48; Responsa Mishpetei Uziel, Vol. 3, Hoshen Mishpat, 5).

           

            Rabbi Hoffman deals with the question discussed by the commentators - how was it that Deborah served as a prophet and judge? - and with the answer suggested by the Tosafists (Tosafot to Shavuot, 29b; and see below on the responsum of Rabbi Uziel). Interesting are his views on the fact that Shlomzion [Salome] sister of Shimon Ben Shetah, head of the Sanhedrin served as a queen, and was considered by the scholars as righteous (see B.T. Berakhot 48a; Leviticus Rabba, 35:10; and see also B.T. Ta'anit 23:1). Hoffman explains that Shlomzion reigned after the death of her husband, King Yannai a Saduccee who persecuted the Pharisee scholars of the law and abolished their cherished tradition; that she restored the former glory, bringing the Pharisees back into the community and reinstating the tradition of the halakha (see Josephus, Antiquities of the Jews, 13,16, 1-2). Thus he writes (Jeschurun, loc. cit., at 263-264):

           

and it is not surprising, therefore, that a woman was permitted to serve as queen, as an exception to the rule, especially since she thus served according to the will of her husband King Yannai.

 

On the other hand (ibid., at 264) -

 

one cannot find any argument in the traditional sources against permitting women active election rights. It is indeed possible that this is contrary to ancient custom, so that one must take care to obtain the consent of the community as is customary in relation to communal enactments.

 

            Rabbi Ritter took a different view, holding it was true that until then there had been no explicit halakhic discussion of the matter, but -

           

            it is clear that according to custom only men were given the right to vote, and women were never given the right to vote throughout the thousands of years of existence of the Jewish communities.

           

            Hence, he held we cannot change the custom (Jeschurun loc. cit., at 445). Rabbit Ritter went on to cite testimony which, in his opinion, supported this position indirectly (see also the comments of Rabbi Uziel, infra).

           

            31. A completely different approach is found in an instructive responsum written by Rabbi Ben Zion Uziel, to the effect that women have both active and passive election rights. Rabbi Uziel served as the chief rabbi of Palestine and then Israel, during the years 1939-1953, and at the time of the halakhic and public controversy over women's suffrage in the early 1920s, he was the chief rabbi of Tel Aviv and Jaffa. His responsum, published in 1940 (Mishpetei Uziel, vol. 3, Hoshen Mishpat, 6) opens with this comment:

           

I wrote this responsum at the time so as to clarify the halakha for myself, and I did not want to publish it and rule on the question in practice. But now, after the question has become resolved of itself, I decided to publish it to aggrandize the Torah.

 

            The comment, "the question has become resolved of itself", is noteworthy, also in the world of halakhic decision, and we shall discuss it below. The responsum is very detailed and we shall refer to several passages which are generally instructive and illustrative of the paths of decision in the halakha. (The responsum was reprinted in Piske Uziel (selected responsa of R. Uziel on contemporary issues, Rabbi Kook Institute Publications, 1976/7, 44); the following extracts are cited according to the pagination in both the original and the later edition.)

           

            R. Uziel opens as follows (ibid., at 32; at 228):

           

This question became a controversial issue in Eretz Yisrael and it rocked the entire community. Manifestos, adjurations, pamphlets and newspaper articles were published daily calling for the entire preclusion of women from participation in elections. Some rested their argument on religious law and some on preserving the bounds of morality and modesty, and others on domestic harmony, and they all rested upon the same maxim "the new is forbidden by the Torah" [see Responsa Hatam Sofer, Orah Haim, 28, 181; idem., Yoreh De'ah, 19-M.E.]. Unfortunately I do not have at my disposal now all the accumulated material on this question, but we are indebted to that distinguished "receptacle" of the Torah [Rabbi Hayyim Hirschenson], who collected the essence of all that material in volume 2 of his book Malki BaKodesh, and this makes it possible to consider all the prohibitory views within my reach.

 

            The author of Malki BaKodesh, Rabbi H. Hirshenson, was born in Safed in 1857 and was educated in the yeshivot of Jerusalem. He was an eminent halakhist and corresponded with the outstanding rabbis and halakhic authorities of his generation on questions of the halakha. In the second part of his book (Minister Publications, 1921, 12-15, 171-209), he discusses at length the question of women's election rights, reaching the conclusion that they have both active and passive such rights. He thus takes a diametrically opposite position to Rabbi Kook (supra). The correspondence between the two reflects the great respect Rabbi Kook had for him (see Letters of Rabbi Kook, Vol. 4 (Rabbi Kook Institute Publications, 1984/5) 23-25 and at 102-103; Hagut - Anthology of Jewish Thought, supra, at 92-93).

           

            In his responsum, Rabbi Uziel deals first with the question of women's active right to vote, in the following terms (Mishpetei Uziel, supra, at 32-33; Piskei Uziel, supra, at 229:

           

With respect to the first [i.e. the active election right-M.E.], we have not found any clear ground for a prohibition, and it is unthinkable to deny women this personal right. For in these elections we appoint our leaders and empower those we have chosen to speak for us, to manage the affairs of our community and impose taxes on our property, and the women either directly or indirectly accept the governance of these elected representatives, and heed their instructions and their public and national enactments. How then shall we hold the rope at both its ends: to impose on them the duty of obedience towards the nation's representatives and yet deny them the right to elect them? And if we are told to exclude them from the electoral body because they are light-minded and do not know how to choose worthy leaders of the community, we will also say: if so, we should exclude from the electoral body all those men who are lightminded, the like of whom can always be found among the people. But reality shows that in past as well as present times, women are as educated and knowledgeable as men to conduct negotiations, to sell and buy, to manage their affairs in the best fashion. And whoever heard of appointing a guardian for an adult woman without her consent? As for the dictum of our rabbis:

 

            "women are light-minded", (B.T. Shabbat 33b, Kiddushin 80b) it has a completely different meaning; and the statement "a woman's wisdom is only in her spinning wheel" (B.T. Yoma 66b) was merely a nice phrase to evade answering the question a woman had posed, the Talmud itself testifying that this same woman was wise: "a wise woman asked Rabbi Eliezer". And our rabbis stated expressly, "and God made the rib" (Genesis 2:22), teaches us that the Holy One ... endowed the woman with greater understanding (T.B.Niddah 45b). As regards licentiousness, what licentiousness can there be in an individual going to the voting booth and casting a ballot? If we have come to fear this - we will have suppressed all of life, and it will be forbidden to walk in the street or enter any shop, men and women together, or it will be forbidden to do business with a woman because this will lead to familiarity and then to licentiousness, whereas no one has ever said this before.

 

For the sake of domestic harmony? As the distinguished rabbi wrote: "if so, we should also deny sons and daughters who are dependent upon their father the right to vote; whenever the scholars feared antagonism, they compared women to grown sons who are dependent on their father (T.B. Baba Metzia 12a). Still a disputant might say: two wrongs do not make a right. But, in truth, the notion of antagonism is inappropriate here, for difference of opinion will find expression in one form or another, and one cannot suppress his outlook and opinions. In any event, family love that is based on a joint effort is strong enough not to be affected in any way by such differences of outlook.

 

            Rabbi Uziel then analyses the "indirect" reasons given by Rabbi Ritter for denying women also active election rights:

           

The illustrious Dr. Ritter makes an innovation, to deny women the right to vote because they are not a community or a congregation and were not counted in the census of the children of Israel, and were not named as progeny of their families (the text of the article is not before me, but I deduce this from what he writes). Let us suppose that they are not a community or a congregation or a family or part of the census or anything else. But are they not creatures formed in His image and with the faculty of reason? And do they not have common affairs that are pertinent to the assembly of representatives, or the committee that it elects, and the directives of which bodies they heed with respect to their property and the education of their sons and daughters?

 

       Rabbi Uziel sums up this part of his responsum thus (op. cit., at 33; at 229-230):

           

If so, having failed to find any hint of such prohibition, I find no positive reason to object to or to say no to the answer sought by a part of the public. And perhaps it was with reference to such cases that it was said "even if ninety nine urge distribution and one only favours individual snatching, this one is listened to since he spoke the halakha" (Mishna, Pe'ah 4:1). [That is, if ninety nine say that the landowner should reap the grain that he left as pe'ah* and distribute it to the poor, and one says that the poor should take the pe'ah themselves while it is attached to the soil, we heed the one, because that is the law - M.E.] But it is also said: "and the women laid their hands on it"**, to gratify the women (T.B. Hagiga 16), even though it appears to be prohibited [see infra - M.E.]. In any event, in the instant matter, where there is no prohibition and the barring of their participation would seem to them insulting and oppressive, certainly in a matter such as this we should give them their right.

 

            In summary, Rabbi Uziel is of the opinion that there is no halakhic rule, express or implicit, that denies women active election rights. Expressions such as "women are lightminded" and "a woman's wisdom is only in her spinning wheel" should not be interpreted literally. The fear of women mingling in gatherings of men has no validity in the contemporary reality, and the concern about domestic harmony following possible differences of opinion among spouses as to whom to vote for, is unconvincing, because the same situation pertains to differences of opinion among other members of the family. Particularly instructive is Rabbi Uziel's reasoning that the duty to obey and comply with the leadership should not be imposed on a person who lacks the right to vote for the leadership that will direct him: "whoever heard of appointing a guardian for an adult woman without her consent?"

           

            Noteworthy too is Rabbi Uziel's method of adducing "indirect" testimony from the spirit of the halakha, to indicate the desirable decisory policy. According to the halakha a person bringing a sacrifice lays his hands on the head of the animal. On this matter it is said in Sifra, Vayikra, par. 2 "and he shall lay his hands on the head of the burnt offering" (Leviticus 1:4) -"the sons of Israel lay their hands and the daughters do not lay their hands", that is, the rule of laying one's hands on the animal sacrifice does not apply to women. And the commentary continues:

           

            Rabbi Jose said, Abba Elazar told me: we had a calf for a peace offering and we took it out to the women's court (in the Temple) and the women laid their hands on it. Not because the laying on of the hands is their function, but to gratify the women.

 

            And if it is proper so to act with respect to a matter prohibited by law - laying one's hands on the head of the animal sacrifice - all the more so, says Rabbi Uziel, is this proper with respect to giving women voting rights, which is not legally prohibited, whereas "precluding their participation [in the elections - M.E.] would seem to them insulting and oppressive".

 

            Rabbi Uziel then proceeds to discuss the second aspect of the issue-passive election rights, a woman's eligibility for public office. On the face of it, says Rabbi Uziel, an express prohibition is reflected in the statement of the Sifre and of Maimonides (Yad, Melakhim, supra), that "likewise all offices in Israel - only a man may be appointed", and he cites additional authorities to the same effect (ibid., at 33-34; at 230). At first he suggests that since this rule is not mentioned either in the Mishna or the Talmud, and since it is implicit in the works of other scholars of that time (Rishonim) that they did not hold the same opinion, one should not rule according to it. But this did not satisfy him, and he arrived at an interesting distinction between Maimonides' ruling and the issue of passive election rights concerning a woman's eligibility for public office. He holds (ibid., at 34; at 231-232):

           

And if the heart still hesitates on the matter, which is only right since one should not dismiss the Sifre and the ruling of Maimonides on the basis of evidence and nice points not expressly contrary to their opinions, yet one may qualify women for election on a different ground, which is: that this halakhic rule applies only to appointments by the Sanhedrin, whereas here there is no question of appointment only an acceptance, since by way of the elections a majority of the community expresses its opinion, consent and trust as regards the elected persons, empowering them to supervise all public affairs, and even Maimonides admits that there is no tinge of a prohibition in this respect.

 

So too we find that Rabbi Nissim Gerondi wrote (Commentary to tractate Shevuot, at the beginning of chapter 3):

 

and the verse about Deborah, that she was a judge of Israel, does not mean literally a judge but a leader, and despite what is said in Sifre: "You shall set a king over yourselves, not a queen", there they did not appoint her but obeyed her decree; and even if she was a judge, they accepted her in the manner that a person accepts a relative [who is otherwise not qualified to judge the case - Ed].

 

And thus Rabbi Solomon b. Adret wrote: "one should say (that Deborah) was not really a judge but a leader like the judges that judged Israel [that is, led Israel, which is the simple meaning of the term judge in the Book of Judges - M.E.], and even though it is said in Sifre, you shall set a king over yourselves, not a queen, there they did not appoint her but treated her like a queen and obeyed her instructions" (Commentary to tractate Shevuot, at the beginning of the chapter on the oath of testimony). And Rabbi Hayyim David Azulai quotes from the Zikhron Devarim of Rabbi Hacohen Perahyah: "and Deborah was a leader just like a queen", which is what Rabbi Solomon b. Adret said (Birkhe Yosef, Hoshen Mishpat 7:11). From which one learns that the entire prohibition against appointing women to public rule applies only to appointments by the Sanhedrin.

 

For it is clear that even according to the Sifre it is permitted to accept her as a judge, that is, as a leader and she judges in the same way that it is permitted to accept a relative. And therefore, where appointments are made by elections, which is acceptance of the elected persons as leaders, one may by law elect women too, even according to the view of the Sifre and Maimonides. And we have not found anything to the contrary in the statements of the Rishonim.

 

            Rabbi Uziel proceeds to discuss the view, much emphasized in the comments of Rabbi Kook and other scholars on the present issue, that a woman's involvement in public functions violates her modesty, since she becomes embroiled in the turmoil of the public and political debate. He writes (ibid., at 34; at 232) :

           

There is still, however, room for questioning, because even if in terms of the halakha the acceptance is effective and she can be elected under the rule "they accepted her governance", yet in terms of morality and the bounds of modesty, perhaps the matter is forbidden?

 

            The answer Rabbi Uziel gives to his own question is a lucid illustration of halakhic policy in decision-making:

           

Reason would have it that there is no licentiousness in any serious conference or useful discussion, and every day men meet with women on commercial business, and negotiate with each other, and none of this produces any alarm or outcry. And even those given to sexual abandon do not contemplate forbidden acts while they are seriously bent on their business affairs. And the admonition of our rabbis "do not converse too much with a woman" (Mishna, Avot 1:5) refers to unnecessary idle talk, it being this kind of conversation that leads to sin. Not so, however, as regards a conversation or debate about important public affairs; and sitting together for the purpose of public work, which is divine service, does not engender sinful habits or lead to levity, and all Israel, men and women are holy and are not suspected of breaching the bounds of modesty and morality. In answer, do not quote this statement of the scholars: "at first women sat within and the men were without, and were led to levity, so they instituted that women should sit in the gallery and men below" (Sukkah 50a). This was said with reference to a mass gathering of both worthy and licentious people together, in which case we are apprehensive of the licentious minority, especially when they are immersed in the festivity and ruled by the evil inclination. But this was not said in reference to a gathering of elected representatives, whom it would be wrong to portray as sexually licentious, and the like of which Israel shall not know.

 

Rabbi Uziel ends his responsum thus: (ibid., at 35; at 234:

 

Conclusion: A. A woman has a full right in elections so as to come under the disciplinary duty owed the elected persons who lead the people. B. A woman can also be elected if so consented to and enacted by the public.

 

            32. Rabbi Uziel's responsum was apparently written during the 1920's, but was published only in 1940, at which time - so it was stated at the beginning of the responsum -"the question had resolved itself". That statement was largely true, but not entirely so. In this respect it is illuminating to look at two brief responsa written by Rabbi Yehiel Weinberg, a prominent responsa writer of his generation, who served with the Hildesheimer Rabbinical Seminary in Berlin and later resided in Montreux, Switzerland. The first responsum, written in 1932, reads as follows (Responsa Seridei Esh, vol. 2, 52):

           

And in the matter of women's election right - in the Halakhic Commission of the Association of Rabbis in Germany I showed that in terms of religious law there are no grounds to prohibit suffrage, and I refuted the evidence brought by the great teacher, the late Rabbi Hoffman. In any event we all agreed that the election of women is against the custom in Israel as well as the Israelite morality in public life, which always tried to preserve "all glorious is the king's daughter within (the palace)", since the Jewish woman should guard her home and the education of her children, and should not be vociferous or a gadabout to squander her strength, destroy her modesty, and lose her charm and appeal through political and public disputes and quarrels.

 

It is, therefore, certainly appropriate to do all that is possible to prevent the participation of women in the leadership of the communities as well as in the elections. However, the peace and unity of the community should not be broken, if its powerful and persuasive members prevail to introduce suffrage. But in principle one should not depart from the ruling of the late Rabbi David Hoffman, who was a great teacher, and the only one to write words of reason founded on the rabbinical sources.

 

            According to Rabbi Weinberg, Jewish religious law accords women both active and passive election rights. But he considers the election of a woman to an office of community leadership as "against the custom in Israel", so as not to lead her into political and public disputes and quarrels, and it is therefore appropriate, in his view, to abide by the decision of Rabbi Hoffman, who supported giving active but not passive election rights. He adds, however, that if those in favour of giving women also the passive election right prevail, it should not be opposed so as not to disturb the peace and unity of the community.

           

            Nineteen years later, in 1951, Rabbi Yehiel Weinberg wrote his second responsum on the same subject (ibid., vol. 3, at 105):

           

With respect to his question on women's election right, Rabbi D.Z. Hoffman allowed them to vote but not to be elected; but the rabbis in Eretz Israel, as well as the Hafetz Hayyim and Rabbi Hayim Ozer Grodzinski and others, barred the active election right too. And Chief Rabbi Uziel, in his Mishpetei Uziel, permits women both to vote and to be elected. And why should I thrust myself into the controversy between those who permit and others who prohibit; let time take its course and resolve the matter. Those who prohibit have a moral ground, that it violates modesty for a woman to deal with affairs of the public and the community. And they also bring suporting testimony ... and it is sought to reject and dispute. But there is no benefit in the disputation, for the matter has deeper implications.

 

            This passage is instructive. The writer acknowledges the difference of opinion on the matter, yet does not wish to enter the controversy, nor considers it necessary. In this responsum he no longer supports Rabbi Hoffman's view that in terms of the religious law women do not enjoy the passive election right. His decision is - "let time take its course and resolve the matter".

           

            That expression should not be regarded as an evasion of the decisory duty; rather it embodies one of the methods employed in the world of halakhic decision-making. As is known, custom is one of the halakha's legal sources (in this regard see my book Jewish Law (2nd ed. at 212 ff., 219, ff.; 3rd ed., at 203 ff., 210 ff.). Sometimes custom serves to decide the law where there are different opinions among the halakhic scholars; sometimes it decides the law on a question that has arisen in practice and to which there is no known answer in the existing halakha (a lacuna), and sometimes custom does not merely add to the existing halakha but even alters one of its rules. This latter function of custom is limited to civil or monetary law (dinei mammonot) only, and, with certain exceptions, does not apply to matters of ritual permission and prohibition. Elsewhere I have elaborated further on this subject (see Jewish Law, 2nd ed. at 726 ff.). As for the role of custom in deciding the religious law where there are differences of opinion among the halakhic scholars, it is said in the Babylonian Talmud - in response to the question how to decide the law where the scholars are divided: "go out and see what is the usage of the people" (B.T. Berakhot 45a; Eruvin 14b; see also the Jerusalem Talmud Pe'ah, chapter 5; and see my book, op. cit. (2nd ed.), at 728-730, and the footnotes there). "Let time take its course and resolve the matter", in the words of Rabbi Weinberg, is thus an accepted method of decision according to the custom followed by the public.

           

            33. Another interesting responsum on this issue was given by Rabbi Moshe Feinstein, a leading responsa writer of our generation. He does not discuss the general question of women's election rights, only that of the appointment of a woman to a specific public office, that is, her appointment as a kashruth (dietary laws) supervisor. He relates the facts thus (Responsa Iggerot Moshe, Yoreh De'ah, vol. 2, 44):

           

            In the matter of the widow, the wife of a scholar who was a kashrut supervisor, who has been left penniless and lacking means of sustenance for her orphan sons.

           

            And her being a modest woman and truly godfearing, and also wise, understanding and responsible, whether one may rely upon her to take the place of her husband as a supervisor, in this manner to provide for herself and her sons.

           

            May it please the esteemed scholar to advise me on the matter.

           

            Rabbi Feinstein first discusses the question whether a woman can be trusted to fill the position of a kashrut supervisor, and after a detailed discussion concludes -

           

            that as regards her trustworthiness there is no reason for apprehension, for if she is regarded as a worthy woman, who knows and understands how and what to supervise, she may be relied upon.

 

            Rabbi Feinstein then considers an additional question that arises, i.e. according to Maimonides (as we have already noted) only men can be appointed to public office and "it appears that kashruth supervision is such an appointment". Rabbi Feinstein finds support for this in the Talmudic statement that the task of supervising weights and measures among the merchants is an appointment, "and that is exactly like supervision of kashrut, because what distinction is there between the fitness of weights and measures and the fitness of food under the dietary laws". Rabbi Feinstein makes an interesting distinction between a position to perform a task that is not an appointment to "office", that is, to a position of authority, and a position that is an appointment to office or authority. This is an important distinction because Maimonides' prohibition relates to an appointment to a position of authority and not to a labour in general, which a woman is permitted to do. He writes:

           

And the reason is that the difference between considering one a labourer or as appointed to a position of authority has nothing to do with the importance of the task. But if one was hired to do the will of his workgiver he is a worker even if the work is important, and if he was hired to act also contrary to the wishes of the proprietor, as in the supervision of weights and measures where the proprietor might want him to approve imperfect weights and measures whereas he is appointed to condemn and confiscate them from the proprietor, then he is in a position of authority over the proprietor, since the proprietor is bound to do what the supervisor tells him.

 

And the very same applies to an appointment as kashrut supervisor, for his task is to act even against the will of the proprietor and not to allow him to procure forbidden items. And if so, according to Maimonides, one should not appoint a woman for this task.

 

            Though he concludes that the office of kashrut supervisor is an appointment to a position of authority, Rabbi Feinstein rules that a woman may be appointed to this office. In his opinion, Maimonides' view that only men may be appointed to "office" does not originate from a Talmudic source, but from "his own reasoning", and he shows that the author of the Hinnukh (R. Aaron Halevy, 13th century Spanish halakhist), and the Tosafists, as well as Rashi and Rabenu Nissim all disagree with him, holding it is permitted to appoint a woman to an office of authority. The conclusion is -

           

            therefore, for reason of a great need, for the sustenance of a widow and her orphan sons, one may rely on those who disagree with Maimonides and appoint her as a supervisor in her husband's stead .

 

            In other words, in a situation of "great need", such as the livelihood of a widow and orphans, one may rely on the opinion of those who disagree with Maimonides and appoint her a kashrut supervisor. I might add that Rabbi Feinstein subsequently finds a way to reconcile the appointment also with the view of Maimonides, by making the rabbi himself the formal supervisor even if in fact it is the woman who discharges the function.

           

            A later responsum of Rabbi Feinstein (Responsa, ibid., 45) throws light on the contemporary communal background and the controversy surrounding the issue here discussed. It appears that Rabbi Feinstein's above-mentioned ruling on the woman's appointment encountered opposition from other rabbis, one of whom complained about it in a letter written to Rabbi Feinstein, apparently in strong language. Rabbi Feinstein responds:

           

I do not know why the esteemed scholar needs to apologise for differing from my opinion. Certainly every one must seek the truth according to his own understanding, whether it be lenient or stringent, even if he is a pupil who opposes his teacher's reasoning, all the more so when the disagreement is not between the teacher and his pupil.

 

And if he meant to apologise for the critical language he used against me, it is well known, mercifully, that I am not, Heaven forbid, demanding with anyone, and certainly not with a learned scholar. So I shall confine myself to the substance of the matter.

 

Comments worthy indeed of their author!

 

            34. The question of women's election right also occupied the religious kibbutz movement in connection with the election of female members to fill various "offices" on the kibbutz (see The Kibbutz in the Halakha, supra., at 277 ff.). Kibbutz Hafetz Hayyim, an affiliate of the Poalei Agudat Yisrael movement, posed that question to Rabbi M. Auerbach, whose responsum, given in 1934, was the basis for the directives which were set as a "middle course" between the divergent views, for instance, by distinguishing between the different organs of the kibbutz (ibid., at 285 ff.; and cf. the essay of Rabbi Y. Efrati, at 277 ff., who endorsed this course). A slightly different and more lenient tone was sounded in the essay by Rabbi Yonah Dovrat (ibid., at 291 ff.) and amidst some of the kibbutzim belonging to this movement (see Amudim, Religious Kibbutz Journal, 1955/6, at 16-17). On the other hand, the religious kibbutzim affiliated with the National Religious Movement - which form a clear majority of the religious kibbutzim - give female members the full election right, both active and passive, with reference to all the bodies and institutions of the kibbutz and the movement (see Amudim 1987/8 (month of Iyar) containing the resolutions of the 20th Council of the Religious Kibbutz on the status of women, inter alia "calling upon the Minister of Religions to confirm the election of women as members of religious councils").

 

            Finally we shall mention the opinion of Rabbi M. Steinberg, rabbi of Kiryat Yam, that "women have the right not only to vote but also to be elected to public institutions, because election is not the same as appointment" (Hilkhot Nashim (1983/4)). As authority he cites the ruling of Rabbi Uziel (supra) and explains his reasoning thus (ibid., footnote 5):

           

            Therefore this is not appointment but acceptance, for by virtue of the elections the majority of the congregation voices its consent to the elected representatives acting on its behalf in supervising the public affairs.

           

            (And he also cites the above-mentioned ruling of Rabbi Feinstein that a woman may be accepted as a kashrut supervisor.)

           

            35. The differences of opinion encountered in the course of our inquiry are characteristic of the world of the halakha and, moreover, should be seen as integral processes of thought and decision-making, and reflective of the primary rule and guiding principle long ago determined in the Talmudic disputation between the academies of Hillel and Shammai: "both these and those are the words of the living God" (Eruvin 13b). I have discussed elsewhere the origin of this phenomenon and its import in the world of the halakha (see M. Elon, Jewish Law (2nd ed.) at 870 ff.) and shall not elaborate here. One of the characteristics of the ancient halakha, as it has come down to us, is its anonymity and uniformity; the halakha as decided in the Sanhedrin by majority vote, became the general ruling of the entire Sanhedrin. Towards the close of the period of the Zugot* (at the beginning of the first century) there was increasing difference of opinion in all branches and fields of the halakha, with not only theoretical but also practical implications, each school acting according to its own ruling. External political forces, and internal factors (the dispute between the Pharisees and the Saduccees, and the differences of opinion among the Pharisees themselves - between the Houses of Shammai and Hillel) divested the halakha of its directive and regulatory authority, as well as its decision making capacity:

 

 

            When the disciples of Shamai and Hillel who had not studied diligently, increased, disputes multiplied in Israel and one Torah became as two.

(T.B. Sanhedrin 88b; a slightly different version appears in the Jerusalem Talmud, Sanhedrin 1:4 and 8:2.)

 

            These disputes introduced the phenomenon of a practical pluralism in halakhic decision. At first, during a certain period, this was a tolerable situation (Tosefta, Yevamot 1:111; Mishna, Yevamot 1:4; Mishna Eduyot 4:8), but this pluralism could not endure, and differences of opinion in various areas of family law and the laws of purity and impurity led to bitter dispute, threatening to divide the nation (See Jewish Law, supra, at 872-874). One generation after the destruction of the Second Temple (at the beginning of the second century), with the consolidation of the new center of study at Yavneh, headed by Rabban Gamliel the Younger, the unity of the halakha was restored in practice -

           

            and at Yavneh a heavenly voice was heard, saying: both these and those are the words of the living God - but the halakha is according to the House of Hillel.

           

            And with this decisive determination, that the system of the "halakha cannot tolerate pluralism in actual practice, the principle of a pluralism of views in the halakha, was recognized. Though conceptually, "these and those are the words of the living God", yet for practical purposes -

           

            what was it that entitled the House of Hillel to determine the halakha? because they were kindly and modest... [tolerant - according to Rashi; see Jewish Law, supra, at 874-875, ff.]

           

            36. I am not a halakhic decider, nor the scion of such, and I know all too well that that title does not befit me. But there is the Torah, and I must study it. And I wrote as I did on the halakhic discourse for no other reason than to study, and to draw from the springs of our scholars, whose wisdom we imbibe and by whose mouths we live. And I too, if it were at all possible, would follow the example of the late Chief Rabbi Uziel, keeping what I have written to myself, to be published at some other time. But what choice have I, when the decision on the sensitive and complex issue before us entails deliberation of the halakhic discourse and clarification of the opinions of our rabbis on the subject, one that continues to stir public debate. This is not, therefore, the time for a "hidden scroll".

 

            Consider the wisdom of Rabbi Weinberg's perspective on this controversy, to "let time take its course and resolve the matter", for time has indeed brought resolution. Thus, the three luminaries of the previous generation, all considered and held that women were not even entitled to the active election right, namely: the former Chief Rabbi of Eretz Israel, Rabbi Kook; the most prominent of the responsa writers in the lands of the Dispersion, Rabbi Hayyim Ozer Grodzinsky; and the greatest halakhic authority of his generation, the author of the Mishnah Berurah, Rabbi Yisrael Meir Hacohen of Radin (known as the Hafetz Hayyim). Many other rabbis and scholars also held the same view. But time has wrought changes to resolve the issue otherwise. In all the observant communities, without exception, among Hassidim and Mitnagdim, ultra-orthodox and national-religious, in all their camps and factions, women participate in all the elections for the state institutions and organs. And we have not heard, for many years now, of any halakhic authority warning religiously observant Jewish women against voting on the ballot day. That is the custom, and no one sees need any longer to ascertain what the practice of the public is.

 

            Rabbi Weinberg's above-mentioned statement pertained also to the passive aspect of women's election right, that is, their eligibility for public office. Here, too, it seems that time has resolved the matter for the majority of the observant community: religiously observant women have served as members of the Knesset; they have served and continue to serve as members of local authorities and discharge a variety of public functions, thus conducting themselves consistently with the view of great halakhic scholars, as explained above. It is true that in some sectors of the religious public, women do not serve as members of local authorities and in similar public offices. But how can one deny a religious woman this right, if she wishes to follow the opinion of leading scholars who permit the election of women to public office, as well as the practice of many hundreds of Jewish women who keep the Torah and its commandments yet serve in a variety of public offices? And is it possible to say in this day and age that a woman who sits in the Knesset, or on a local council or a kibbutz secretariat, is lacking in the modesty that befits a daughter of Israel? Thus we see all the matters and premises stated in the instructive and detailed responsum of late Chief Rabbi Uziel realized in practice.

 

            The Petitioner seeks to take her place among the members of the religious council in Yerucham, and the Local Council, i.e. the public, chose her and proposed her candidacy for that office. The religious council, as we have seen, exercises no halakhic authority whatever, it makes no halakhic decisions and - having regard to the male component of its membership - it is incapable of making halakhic decisions. For the first requisite for ruling on the law is to study and know the Talmud and the halakhic codes, and to have the appropriate qualifications for so doing. All that the religious council does is to provide religious services, construct and maintain ritual baths, facilitate study of the Torah and Judaism by the public, and also see to proper arrangements for observing the dietary laws. And if it is permissible for a woman who is known to be observant to act as a kashrut supervisor - as we saw in the responsum of Rabbi Feinstein - shall it be forbidden to the petitioner to see to the budget and other requirements for maintaining proper kashrut arrangements in Yerucham?

 

            37. I have not overlooked the opinion of the esteemed Chief Rabbinate Council, that women may not be permanent members of a religious council. We all hold dear the dignity and standing of this supreme state halakhic institution, which is headed by the two chief rabbis of the State of Israel and whose members are learned halakhic scholars. And I reiterate that all I have written is for no other purpose than to elucidate and deliberate concerning the halakhic discourse. To this end, I have cited the opinion of authoritative halakhists, the Chief Rabbi of Eretz Yisrael and other rabbinical scholars, all of whom hold that a woman may serve in public office if elected thereto by the public - with which view the Chief Rabbinate would seem to disagree. With great respect, however, I venture to suggest that perhaps the Chief Rabbinate Council does not really differ from those who believe that a woman may serve in public office, but believes that it is the function of the religious council to deal also with halakhic aspects of the provision of religious services. I find support for this suggestion in the fact that the Committee of Ministers likewise erred in this respect, which was one of the reasons for it deciding as it did, as I explained in detail above. And if that is indeed the case, and there is ground for my supposition, it is possible that the Chief Rabbinate Council may want to reconsider the matter of the Petitioner's seat on the Yerucham religious council.

           

            38. Before concluding I might profitably mention a comparable phenomenon of halakhic controversy and debate on a related issue coming to the fore in recent generations. I refer to the matter of women studying the Torah. I have already had occasion to discuss the issue in this court (S.T. 1/81, Nagar v. Nagar [17]), in relation to the duty to teach and educate sons, which is imposed equally on the father and the mother, and I shall retrieve from that decision some of its main points of interest in the instant context.

           

            According to the halakha in the Mishnah and Talmud, the father must teach his son Torah, and the woman is exempted from this obligation. The explanation for this rule is that the father, who is himself obligated to study the Torah, must likewise teach his son; but the woman, who is not herself obligated to study Torah is accordingly not obligated to teach her son. And women are not themselves obligated to study Torah, because others are not enjoined to teach them Torah, as we learn from the verse, "And you shall teach them to your sons" (Deutoronomy 11:19), which the rabbis interpreted - "not to your daughters" (Kiddushin 29a, Mishna and Talmud). And Maimonides summarizes the rule thus (Yad, Hilkhot Talmud Torah 1:1):

           

            Women... are exempt from studying the Torah; but the small son, his father must teach him Torah, for it is said: "and you shall teach them to your sons and speak of them". And the woman is not obligated to teach her son, for whoever is obligated to study is obligated to teach.

           

            As regards the substance of women's exemption from study of Torah, and the farreaching change of attitude that has occurred in latter generations, we stated in Nagar v. Nagar ([17], at 404-406):

           

This "threefold" exemption of the woman - who is exempted from teaching her son and from teaching herself, while the father is exempted from teaching his daughter - has prompted differences of opinion ever since the time of the Tannaim*. According to Ben Azzai -"a man is under an obligation to teach his daughter Torah", whereas Rabbi Eliezer ben Hyrcanus thought otherwise - "whoever teaches his daughter Torah teaches her frivolity" (Mishnah, Sotah 3:4). The reasons for this dispute and for Rabbi Eliezer's harsh comment have been variously interpreted, but we shall not elaborate here ... Various talmudic and post-talmudic sources do indeed speak in praise of wise, scholarly and learned women... but the halakha was decided according to the view of Rabbi Eliezer (see Maimonides, Talmud Torah 1:13; Shulhan Arukh, Yoreh De'ah, 246:6 ...). With the passage of time the prohibition on study by women underwent various and relaxations, whether relating to the nature and scope of the material studied - the written Torah and practical commandments - or to the depth of their study, and so on.

 

A material change of perspective on this socio-halakhic matter has occurred in recent generations, concurrently with the profound socio-ideological changes. The halakhic scholars have justified this change of perspective on various grounds, the extent and nature of the change in approach varying according to the character of the reasoning. Thus a generation or two ago Rabbi Yisrael Meir Hacohen of Radin, author of the Hafetz Hayyim, related to Rabbi Eliezer's statement about the prohibition of teaching Torah to his daughter, as follows:

 

         It appears that all this applies to past times ...

          when the tradition of the fathers was very strong and every one acted according to the way of our ancestors ... we could say that the daughter should not study Torah, but should rely on the guidance of her righteous fathers. But now, when, sinfully, tradition has weakened greatly with the fathers... especially among those whose practice it is to study the writings and language of the nations, it is certainly very meritorious to teach them the Five Books of Moses, as well as the Prophets and the Writings and rabbinical ethics...

(Collection of Halakhot of the Hafetz Hayyim, Sotah, 21.. .)

 

This ruling gained wide acceptance in Israel, both prior to the establishment of the State and thereafter. Rabbi Zalman Sorotzkin, a leading yeshiva figure wrote (Moznayyim La-Mishpat, 1955/6, par. 42):

 

It is only in relation to the study and disputation of the Oral Law that it was said "whoever teaches his daughter Torah...". But even with respect to the Oral Law a woman is permitted to study the final conclusion, without questions and analysis ... It is not the same today as in former times: in former times Jewish households conducted themselves according to the Shulhan Arukh and it was possible to learn all the Torah from experience... But now ... in this generation not only is it permitted to teach Torah and piety to young girls, but it is also an absolute obligation and, as we explained, it is a very meritorious act to found schools for girls and to implant genuine faith in their hearts as well as knowledge of the Torah and the commandments.

 

It is the nature of halakhic decision - as is the case with all adjudication - that it does not detach itself from the existing law but narrows it or distinguishes it from the new law in the making. Hence the restrictive interpretation of the prohibition against teaching one's daughter Torah as applying only to the study and disputation of the Oral Law. A significant proportion of the contemporary halakhic scholars have shed even this reservation. Thus Benzion Firer, rabbi of Nir Galim, was asked whether the heads of the religious education system were correct in teaching the Written and the Oral Law to girls. He responded unequivocally, distinguishing between former and contemporary generations -

 

When the headlong chase after the tree of knowledge has gripped all human beings, men and women alike, who will stand up and stop this mighty current ... For it is inconceivable to prevent girls from studying precisely the Torah and Judaism, every part of it.

 

Rabbi Firer outlines the existing reality:

 

Like it or not, the fact is that the place of the melamed [male tutor] has been taken by the [female] teacher, and this teacher hands down the Torah to the boys and girls in the primary schools ... And, since it is she who imparts knowledge of the Torah in the primary school, and to boys also, it follows that the observance of the commandments by the boys depends on her knowledge. And since, in any event, they regard all the religious laws equally today - those that pertain to her as a woman and those that pertain to her as the teacher of boys... I would wish for all the daughters of Israel to study the Torah ...

(No'am (halakhic publication, Jerusalem), vol. 3, 134.)

 

Also in point is a responsum of Rabbi Moshe Malka, a former leader of the Moroccan Jewish community and present head of the Petah Tikva rabbinical court (Responsa Mikveh Ha-Mayyim, vol. 3, Yoreh De'ah, 21):

 

The dispute between Ben Azzai and Rabbi Eliezer had reference to their times, when the norm was "all glorious is the king's daughter within the palace", and a woman never went outside the home, nor participated in worldly affairs, when her entire enterprise and wisdom were confined to managing her home and educating and raising her sons ... Not so in current times, when women play a large role in all walks of life, penetrate the depths of the secular sciences and occupy the benches of the universities, run offices and own businesses, and have a hand and a voice in the leadership of the state and in political affairs ... Rabbi Eliezer would certainly admit that there is no prohibition against teaching her the Oral Law too, so that she may know how to take care and observe all the laws of the Torah that are pertinent to her affairs and work. Moreover, we are actually obligated to teach and impart to her as much as possible...

 

Rabbi Aaron Lichtenstein, head of the Har Etzion Yeshiva at Alon Shvut, writes in like vein ("Fundamental Problems in Women's Education", in The Woman and Her Education" (Kfar Sava 1980/1) 158-159; a question and answer transcript):

 

In my view it is desirable and necessary, and not only possible, to give girls intensive education, even from the sources of the Oral Law, be it because women engage in all occupations, leaving no reason to withhold the Torah from them, or be it because of the statement of the Hafetz Hayyim...

 

...In my opinion what girls need in order to receive a practical religious training far beyond their instruction today, is an intensification of girls' studies, in quantity and in quality and with instruction in all spheres of the Torah...

 

...One should strengthen study of the Oral Law. In practical terms, it would be beneficial to teach them the [Mishnaic] orders of Zeraim, Mo'ed and Nezikin, as well as the relevant minimum of Nashim, Kodoshim and Tohorot. And when we teach, we should do so in depth... I have no objection to teaching girls Gemara [Talmud]... and it should even be institutionalised as an integral part of school studies, in the form of a proper lesson ... and this seems to me to be the recommended course for the daughters of our generation...".

 

            Now the above reasoning in relation to study of the Torah by women, applies a fortiori to the matter here in issue. With respect to the former issue, there is an express rule in the Talmud, generally upheld in the halakhic codes, that a woman is not only exempt from studying the Torah but even forbidden to do so, this rule being derived from the Biblical verse "and you shall teach them to your sons", and not your daughters. But the profound socio-ideological changes experienced in latter generations, has radically altered also the outlook on the issue of women studying Torah, and it has been determined that not only is there no longer any prohibition, but women are even obligated to study Torah; and not only do they study it for themselves, but they even teach it to the sons of others. And if this is the outcome of the controversy concerning women studying the Torah, then the issue of the election of women to public office should have the like outcome, a fortiori, since most rabbinical scholars are of the opinion that the matter is not expressly prohibited in the Talmudic halakha, and some of the codifiers and Rishonim differed from Maimonides' opinion that only a man may be appointed to all public office. And if so radical a departure as abrogation of the grave prohibition against women studying the Torah could result from social and ideological changes, why not a much less radical departure that permits a woman to serve on a religious council? Should we not see Rabbi Malka's assessment of the contemporary situation (supra) -

           

...in current times, when women play a large part in all walks of life, penetrate the depths of the secular sciences and fill the benches of the universities, run offices and own businesses, and have a hand and a voice in the leadership of the state and in political affairs

 

            - as constituting decisive reason to permit modern women to take part in developing and maintaining religious services in their place of residence, by serving on the council charged with implementation of the task? At a time when women actively take part in diverse educational, cultural, social and political pursuits, is not a woman's preclusion from serving on a religious council, in particular, a harsh insult to her dignity and standing, precisely as a religious woman? She may discharge a public function in all areas of social, cultural and political life, but not in a public body that caters to her religious way of life? Is the native-born to be on the earth and the foreign-born in the highest heavens? (T. B. Baba Kama, 42a).

 

            It need scarcely be said that in the world of the halakha we do not discuss purely legal-halakhic questions, in the sense of juridical rights and duties. Rather the ideological and normative values of Jewish religious life are inherent in and inseparable from the subject of the discourse. For we are taught "do not read ways of behaviour [halikhot], but legal rules [halakhot] (cf. T.B. Megilla 28b) and by way of paraphrase we could equally well say, "do not read legal rules [halakhot] but ways of behaviour [halikhot], since legal rules and ways of behaviour come inextricably linked. We have seen clearly reflected - throughout the scholarly passages here cited-in addition to the legal exposition of our subject, also lengthy and detailed discussion of the conceptual implications of Jewish family life; the roles of the father and the mother, of the woman and the man, domestic harmony, the concept of modesty, and so on. All this because examination of these concepts is essential to the juridical-halakhic ruling on our subject. However, these important concepts must be addressed according to both their original significance and their contemporary setting, as we have learned from the passages quoted. Take, for example, this last concept [of modesty - Ed.] and its deep significance in Jewish life, for all persons, as stated by the prophet Micah:

           

            You have been told, man, what is good and what the Lord requires of you - only to do justice, and to love mercy, and to walk modestly* with your God. (Micah 6:8; and see B.T. Makkot 24a.)

           

            It is fitting to cite a passage on the subject written by Rabbi A. Lichtenstein

(see The Woman and Her Education, supra, at p. 158):

 

            The question is, to what extent do we want to perpetuate the original position we find in the halakha or to modify it by legitimate halakhic means, having regard to historical developments. This is a question of outlook affecting not only our present problem but also many others, such as the sabbatical year, the transactions permit**, and so on. When we circumvent the halakha, by halakhic means of course, should we say that the halakha wanted one thing then and now wants another? Or does the halakha still require the same today, except that we cannot meet its standard? To discuss this problem we must consider not only the specific question on the agenda but also the normative ramifications of the problem. When we seek to circumvent the halakha today, by legitimate means, we must ask whether or not it is for attaining a meaningful purpose, religiously and normatively speaking. There is a difference between using a circumvention in order to feed a number of poor women, as in the example of Rabbi Tarfon given in the Jerusalem Talmud (Yevamot, 4:12), or so that someone can gain a few extra pounds.

 

As for the problem of changing or reforming the status of women, if it is feasible to build a sounder and more perfect society, one that is mindful of the values of the Torah and the halakha, then it must be contended that what once was, was suited to those times, but today there is reason to relate to contemporary reality detached from the past. It is impossible to bring back the past-that is not realistic. It is not possible to revive the simplistic naivete of women that was then. Hence it is needed to replace the Ze'ena Ure'ena*, with a tractate of the Mishna, such as Hullin, to teach women more and lend their lives a content closer to that of men, so that women can derive benefit from the existing reality. But to have neither the one nor the other, that certainly is inconceivable. If there is to be neither innocent belief as in past times, nor serious study of the Torah, women will fall between two stools, and that clearly will not be good.

 

            Such is the way of the halakha from ancient times. On this score we wrote elsewhere (see Jewish Law, supra, p. 9; also p. 38):

           

...The history of the Jewish nation is reflected in the history of Jewish law, its institutions and subject matter. For the development of Jewish law was intertwined with the problems that arose in reality, the law and reality reciprocally influencing each other. The halakhic scholars and the community leaders faced a twofold task: on the one hand, a continuing concern to create and develop the Jewish law, and on the other hand, a great responsibility to preserve the spirit, purpose and continuity of the ideas that were central to each legal institution. The performance of this twofold task - to find and determine legal solutions that were founded in the past and also served the many needs of the current generation - is clearly evident to anyone who studies the history of Jewish law in its different periods...

           

            To the above end, the system of Jewish law has drawn upon its own legal sources - those very sources recognized by the halakha as means to create and develop the rules of the system (ibid.). Thus the statements of the responders and codifiers cited above show that they invoke all of the five creative halakhic sources - midrash [exegesis or interpretation], takkanah [regulation or enactment], minhag [custom], ma'aseh [(an act of) precedent], and sevara [logical reasoning].

           

            The status of women in the halakha serves as a classic example of the development of a central subject in the world of Jewish law, the subject being rooted in and intimately tied to daily life and its exigencies, guiding that reality at the same time as it is guided by it. We see, on the one hand, a constant concern for the continued development and creativity of the halakha, and on the other hand, the great responsibility of preserving its spirit, purpose and continuity, along with its central, fundamental values.

           

            39. From the above survey we also discern, incidentally, another facet of the concept of "Israel's heritage", relevant to the interpretation of this concept as used in section 1 of the Foundations of Law, 5740-1980, forming part of the modern Israeli legal system. This is the facet of Israel's heritage-as found in the halakhic sources and as consolidated under contemporary realities.

           

            40. We must now turn to the adjudication of the issue before this court. The decision of the Committee of Ministers to exclude the Petitioner from the composition of the religious council in Yerucham, was founded on erroneous factual premises and on extraneous considerations, and it is therefore null. The Petitioner, having been lawfully elected by the Yerucham local authority as a candidate on its behalf for membership on the religious council, is entitled to inclusion as a member of that council, and we have not found any ground to disqualify her.

           

            We are aware of the sensitivity of the halakhic, social and public aspects of the matter, and are aware of the grave reservations accompanying the matter and which are entertained by those entrusted by law with its determination, who have sought-and justly so-to avoid any ideological or quasi-halakhic confrontation with the halakhic authorities in Israel today. We are also mindful of the possible mishaps, for a certain period, in the orderly and uninterrupted functioning of the religious council. But none of this is sufficient to free us from the decree of the law in Israel, which prohibits discrimination against the Petitioner so as to exclude her from membership of the Yerucham religious council. It is regrettable that notwithstanding the protracted period of discussion of this matter, or the fact that the course for its proper resolution was marked out from both the legal and the public perspectives, there was lacking the courage to make the necessary and inevitable decision. In particular it pains us that no decision was taken in favour of the Petitioner, a result sanctioned by the halakha in the opinion of prominent authorities.

 

          41. We therefore decide that the Petitioner shall be included in the composition of the religious council in Yerucham, as a nominee on behalf of the local authority. As a result, one of the four representatives of the local authority nominated by the Committee of Ministers to serve on the religious council will be required to vacate his seat in favour of the Petitioner. For this purpose, and for this purpose alone, we remit the matter of the composition of the religious council in Yerucham back to the Committee of Ministers, for it to decide - after hearing all the interested parties and considering the balance required in the representation of the different bodies on the religious council - which of the four representatives of the local authority on the religious council shall vacate his seat in favour of the Petitioner. The Committee is called upon to make such decision within thirty days of the delivery of this judgment.

         

          Respondents shall pay the costs of the Petitioner in the amount of NIS 7,500, with linkage and interest increments from this day until the day of actual payment .

         

          BARAK J. I have read the judgment of my colleague, Elon J. I concur in his opinion, of which I would say, as Agranat P. once said (see E.A. 1/65, at 384) "I have read with great interest the instructive, and I might add, courageous, judgment of my learned colleague...". Yet I wish to denote the essentials of my own perspective on the present matter, since we have a difference of "emphasis" in several respects.

         

          1. The decision in the matter of the Petitioner was made by a ministerial committee, acting by virtue of section 5 of the Jewish Religious Services Law (Consolidated Version) - (hereinafter "the Religious Services Law"). Under this Law, the Minister of Religious Affairs nominates 45 percent of the members of the religious council, the local authority 45 percent, and the local rabbinate 10 percent (section 3(a)). Each of the three authorities must express its opinion concerning the candidates proposed by the other two authorities "with regard to their fitness to serve as members of the council and to their being properly representative of the bodies and communities [edot] interested in the maintenance of Jewish religious services (hereinafter referred to as "religious services') in the locality" (section 4). If there is any disagreement between the three authorities, it is referred to a committee of ministers for determination (the Prime Minister, the Minister of Religious Affairs, the Minister of the Interior or their representatives - section 5). In the present case there were differences of opinion, and for this reason the determination of the Committee of Ministers was sought. Under review here, is the validity of the decision of the Committee of Ministers, although we could equally have examined the validity of the list of candidates proposed by the Minister of Religions and that of the local rabbinate.

 

          2. The Committee of Ministers is a statutory body acting by virtue of a Law of the Knesset. The rules of administrative law that apply to all administrative discretion, apply also to the discretion of the Committee of Ministers. Therefore, if it transpires that the act was done in bad faith or from improper motives or other such factors that may disqualify an administrative act, the decision of the Committee of Ministers will be invalidated (per Berinson J. in H. C. 568/76[7], at 679-680). This court's judicial review of the decisions of the Committee of Ministers is the ordinary judicial review which it exercises. The question before us is the legality of the decision. We do not assume the function of a ministerial committee. We examine whether such a committee, acting reasonably, could have reached the decision actually made (cf. H.C. 258, 282/84[19], at 520).

         

          3. It appears from the decision of the Committee of Ministers, that it adopted the considerations urged by the representative of the Minister of Religions (paragraph H of the Ministers' decision, cited in paragraph 11 of the judgment of my colleague, Elon J.). The Minister of Religions on his part took into consideration the objection of the local rabbi and his reasons, noting that he was convinced that "her appointment would disrupt and impair the functioning of the religious council". As for the local rabbi - whose view persuaded the representative of the Minister of Religions and the Committee of Ministers-his objection was based on the fact that the Petitioner is a woman, for which reason the orderly functioning of the council's activities would be disrupted. It was indicated that the chief rabbinate also opposed the appointment. It follows that the decision of the Committee of Ministers to reject the Petitioner's candidacy was founded on the conviction that, being a woman, her service on the council would disrupt its activities. It is true that the Committee of Ministers noted, and this was also the attitude of the Minister of Religions, that the issue was not necessarily to be decided "as a matter of principle". Yet such a principled decision was in fact made, to the effect that if the local rabbi or the chief rabbinate object to the election of a woman to the religious council, in any particular locality, her election should not be confirmed. The question before us is whether that consideration is a valid consideration, one that a reasonable ministerial committee may take into account. The answer is dependent upon the purpose and objective of the Religious Services Law. It is impossible to determine the legality of a particular consideration unless one examines the question within the context of the statute that establishes the body exercising that discretion. A particular consideration may be illegal within the frame of one statute and legal within the frame of another. Every statute sets its own bounds and considerations (see H.C. 241/60[20]; F.H. 16/61[21]). Sometimes it is difficult to cull from a statute's legislative background any identifiable legislative purpose that is relevant to the solution of the problem in hand. In such a case one may assume that the legislature favoured recourse to the customary values of the legal system (see H.C. 73, 87/53[22]; H.C. 262/62[23], at 2113). Thus,

 

...in the absence of an express provision one should not assume that the legislature intended to depart restrictively from principles that are axiomatic...

 (Per Olshan P. in H.C. 163/57[24], at 1050.)

 

            4. The purpose of the Religious Services Law is to fix a framework for the provision of religious services to Jews. For this purpose a religious council is established, which sets a budget and organizes activities for the provision of religious services. All Jews, men and women, religious and secular, avail themselves of these services. It is sufficient to note that the council organizes burial services, which everyone needs, and marriage registration, which every Jew needs if he wishes to marry. Against the background of these activities we have ruled more than once that the qualifications for serving on a religious council are "secular" and not necessarily "religious". Thus, Berinson J. has held (in H.C. 568/76[7], at 679):

           

            The religious council is appointed not by the Torah law but under a statute enacted by the Knesset. This statute does not determine special personal qualifications for members of the religious council, except that they must be "fit" for the position both personally and in terms of their being representative of the bodies and the communities interested in the provision of Jewish religious services in the locality. This being so, I think that it is not this court's function to examine the minute details of the candidates' fitness in terms of the halakha and to impose upon them qualification standards that are not written in the statute.

 

Cohn J. rephrased the same idea as follows (ibid at 680):

 

...The Petitioner and his learned counsel assume as self-evident that a person who is unfit to hold a public office by religious law, should also be disqualified from serving as a member of a religious council under the Jewish Religious Services (Consolidated Version) Law, 5731-1971, which is, as we know, a secular law. It seems to me that the qualifications and competence under the above Law should be determined according to secular criteria, and are in fact a matter for the discretion of the authorities who make the appointments.

 

            Indeed, there is nothing in the Religious Services Law to indicate that only persons learned in matters of the faith and its law may serve on the religious council, and even a person who is not religious is competent, in principle, to serve on the council (see H.C. 191/64[2], at 610). There is nothing in the Law or in its purpose from which to deduce that the halakhic rules of competency are also the legislative standards, and, therefore, even if a woman is not competent to serve as a member of the council according to the halakha, this does not mean that a woman is not competent to serve on the religious council under the Religious Services Law. The two competencies are entirely separate matters. For all that, I am not contending that a religious consideration is extraneous to the Religious Services Law. It is only natural for religious considerations to be relevant to a statute dealing with the provision of religious services. Thus, for example, the religious council provides services in matters of dietary rules and ritual slaughter. It is only natural for these concepts to be interpreted, in the broad sense, according to the halakha, since there is no secular law concerning dietary rules and ritual slaughter. Furthermore, the "religious consideration" is itself subject to judicial review, both as to the very existence of a halakhic consideration and to its content (H.C. 44/86[25]; H.C. 195/64[26]). But that question does not arise in the instant case. The question here is whether the religious laws that determine one's competency to serve as a member of the religious council are the laws that apply within the frame of the statute. To this my response is in the negative, because the statute is secular, it deals with religious services for all Jews - religious and secular alike - and the council itself is an administrative body, which must provide religious services in the most efficient way. In these circumstances - and in the absence of any contradictory provision in the Religious Services Law - there are no grounds to assume that the religious criteria, whatever they may be, are criteria sine qua non. To the contrary: the assumption ought to be that all persons whose personal traits would enable them to perform the task in the optimal way, are competent to serve on the religious council. This test does not negate the competency of any man or woman a priori. All are fit to discharge the function; from among the fit one must choose the most suitable. Therefore, and assuming that all other factors are equal, I would not necessarily find it wrong to prefer a religiously observant candidate over a secular candidate, because one may assume that the former would perform his function better. But it may possibly be otherwise. There may be a secular candidate who, despite his secularity, would perform his function better. It all depends on the circumstances of the matter. Therefore, a woman is competent to serve as a member of the council, and her selection is dependent on her personal qualifications.

           

            5. We have seen that there is nothing in the Religious Services Law to prevent a woman from serving as a member of the religious council. One might contend that it does not follow that to bar the membership of a woman, as such, is unlawful. Hence, what is the source of the rule that disqualification of a female candidate, merely because of her gender, contravenes the Religious Services Law? This conclusion stems, in my opinion, from the general principles of our legal system, in the light of which every law must be interpreted (per Cheshin J. in H.C. 282/51[27]). One of these general principles is that of equality. Every statute must be interpreted in a manner ensuring equality for citizens of the state (see C.A. 507/79[28], at 794; H.C. 114/78, Motion 451,510/78[29], at 806). Landau J. said in this connection (H.C. 95/69[30], at 698):

 

            ... This unenacted concept is of the essence of our entire constitutional order. It is therefore only just - precisely in the borderline cases, where a statutory provision can be construed in two ways-that we prefer the construction that supports and does not undermine the equality of all persons before the law.

           

            And I took the same approach elsewhere (H. C. 507/81[31], at 585), holding:

           

            The fundamental principle that serves as a legislative objective for all actions of the legislative body, is the principle of the equality of all persons before the law ... We must therefore assume that legislative enactments are designed to attain this objective and not to contradict it, and so we must construe them.

           

            Accordingly, we must construe the Religious Services Law in such manner as to guarantee the equality of all persons before the law. Between two possible interpretations, we must choose that which guarantees equality in the optimal manner, and reject the interpretation that contradicts equality. It follows that we must interpret the Religious Services Law in a manner that guarantees equality of the sexes. Indeed, it is a fundamental principle of our constitutional regime that equality between men and women be ensured, and that the male should not be discriminated against because he is male, nor the female because she is female. This principle is found already in the Declaration of Independence, which states that the State of Israel "will maintain complete equality of social and political rights for all its citizens, regardless of religion, race and sex". The importance of the Declaration of Independence is that it embodies fundamental principles of the regime. It is true that it is not a constitution and it does not have any entrenched force. But it does not follow that it lacks all legal efficacy. To the contrary: it constitutes the charter of the nation's values, since it embraces, among others, several principles that underlie the foundations of the regime as well as a number of basic premises to which legislation must conform. The charter of values has legal effect, since rights are derived therefrom and every law is interpreted in its light. Thus (per Sussman J., H.C. 262/62[23], at 2116)

           

            It determines the way of life of the citizens of the state, and every state authority must guide itself according to its principles.

           

            Indeed, the attainment of equality is the "umbrella-purpose" of each and every statute, and every statute must be interpreted accordingly, so long as there is no particular purpose that is clearly intended to negate this "umbrella-purpose".

           

            6. The principle of equality between women and men found explicit expression in the Women's Equal Rights Law. This statute provides (section 1) -

           

the same law shall apply to man and woman with regard to any legal act; any provision of law which discriminates, with regard to any legal act, against a woman as woman, shall be of no effect.

 

            This provision not merely reiterates and emphasizes the principle of equality that was laid down in the Declaration of Independence - in which respect it is not very innovative - but gives it "teeth", in the sense that any legal directive which serves to discriminate against a woman as such with regard to any legal act, is not to be followed. In this respect one must regard it as "an ideological, revolutionary law that changes the social order ..." (per Silberg J. in H.C. 202/ 57[12], at 1537). It is true that in the absence of a rigid constitution the Knesset may amend and repeal - whether expressly or by implication, wholly or partly - the provisions of the Women's Equal Rights Law, and may enact a discriminatory provision (see C.A. 336/61[11], at 408). Such a provision will of course be given effect, so long as it is understood that it was intended to depart from the fundamental principles of the system, on the one hand, and from the Women's Equal Rights Law, on the other. Such departure may be gathered from the language of the statute and its purpose. In other words, we would be dealing with the interpretation of the new Law. The interpretative process would entail overcoming the presumption in favour of the principle of equality, and the presumption against repeal by implication (full or partial) of statutes. It follows that the discriminatory provision must be phrased in "potent" language, and its legislative history must be clear, in a manner that is powerful enough to overcome the various contrary presumptions that guarantee equality.

 

            7. The assumption as to equality, on the one hand, and the Women's Equal Rights Law, on the other, create a normative "umbrella" under which every statute must be so interpreted that the principle of equality in general, and equality of the sexes in particular, shall be realized. Of course, the language of a statute and its specific purpose might lead to the conclusion that the particular statute was indeed intended to realize special objectives that are not consistent with the principle of equality. The judge, as a faithful interpreter, will give full effect to such a statute and will construe it in the light of such objectives. In order to arrive at this conclusion, however, one must point to "potent" language in the statute itself and a "clear" legislative history, from which one may deduce a rebuttal of the presumption of equality and the presumption against repeal by implication (wholly or partly) of the directive of the Women's Equal Rights Law. In the absence of such indicators, the general assumptions regarding equality and nonrepeal by implication of a statute will stand. Now I am not suggesting that in order to negate the presumption of equality there must be express language to that effect. In my view, even in the absence of such express language the presumption of equality may be negated, so long as this is founded on "potent" linguistic ground and an "unequivocal" legislative purpose. Thus, for example, it seems to me that it would be legitimate discrimination - and perhaps not discrimination but rather distinction - if there were a principled position to appoint only Jews to the religious council. Even though the Religious Services Law does not state expressly that only Jews may serve on the religious council, it seems to me that the "potent" language of the Jewish Religious Services Law allied to its legislative purpose (to provide religious services to Jews), suffice to negate the presumption of equality in this matter with regard to any person who is not Jewish.

 

            8. The Religious Services Law does not contain any "potent" language oriented towards discrimination against women as regards appointments to the religious council, and its legislative history discloses no "clear" basis for a discriminatory approach. It may be assumed that this matter was not even considered. In these circumstances it is to be presumed that the Religious Services Law, too, was intended to realize the principle of equality between the sexes, thus excluding the assumption that this statute was designed to repeal by implication the Women's Equal Rights Law. Each of these premises taken separately, and the cumulative weight of both, lead to the conclusion that appointments to the religious council must be made in observance of the principle of equality. Therefore, each of the three authorities that nominate candidates to the religious council must propose its candidates without violating the principle of equality. Likewise, the Committee of Ministers, which resolves any disagreement between the three authorities, must make its decision in observance of the principle of equality. It follows that the candidacy of a woman should not be disqualified for the sole reason that she is a woman. Each and every candidate must be appraised "on the merits", that is, according to the degree of his or her fitness to serve as a member of the council, on the one hand, and in accord with the representation of the bodies interested in religious services, on the other (section 4). Of course, there is no obligation to appoint a woman to every religious council. If there are no women suitable for the position, there is no obligation to appoint one that is unsuitable. The appointment of an unsuitable woman, for the sole reason that she is a woman, would be an improper consideration. Thus, just as it is wrong to refrain from appointing a woman for the sole reason that she is a woman, so by the same token is it wrong to appoint a woman for the sole reason that she is a woman. The appointment must be on its merits. The decision of the Committee of Ministers did not meet this requirement. It refrained from deciding in favour of appointing the Petitioner for the sole reason that she is a woman. There is no substantial argument that the Petitioner is unfit for the position for any reason, other than her being a woman. Thus, the dominant consideration of the Committee of Ministers was an extraneous consideration, the effect of which, in the existing circumstances is to nullify the Committee's decision.

 

            9. My colleague, Elon J., examines the question (in paragraph 21 of his opinion) whether the Petitioner's disqualification from service on the religious council can be justified on grounds specified in the Women's Equal Rights Law for exclusion of the provision concerning equality. As for myself, I would prefer to leave this matter for further consideration. As I indicated, the instant case involves the interpretation of a statute concerning appointments to a religious council, and to that end, it suffices to rely on the principle of equality that is an element of the "credo" of our state. The reference to the Women's Equal Rights Law furnishes additional grounds for an approach that may be employed independently. It is a nice question, what the law would be were one conclusion reached under the one heading (the fundamental principles) and a different one under the other (the Women's Equal Rights Law). As aforesaid, there is no need to resolve this question, and I wish to leave it for another occasion. Likewise I wish to leave open for further consideration the distinction suggested by my colleague between an administrative body and a halakhic body, since such a distinction creates many difficulties with respect to an administrative body that is also a halakhic body. A person's competence to serve on such a "hybrid" body will also be determined - in the absence of an express statutory provision - by way of construing the pertinent statute in light of its purpose. The halakhic character of the body will be one of the elements, though not the only one, taken into account in interpreting the legislative act. But, as I have said, we do not need to address this question here, and it should be left for another occasion.

           

            10. My colleague, Elon J., examined the position of the Committee of Ministers that there are grave fears concerning the efficient functioning of the religious council if a woman serves on it. He proceeds on the assumption (paragraph 22 of his opinion) that the fundamental right of women's equality is a relative and not an absolute right, and it should be balanced against legitimate interests of the individual and the public. He concludes that the grave fears of the Respondents should not act to tip the balance, since a woman's membership on a religious council is not prohibited by the halakha, and there is therefore no fear that her appointment would paralyse the religious council's work. He goes on to state that had it been contended that a halakhic prohibition bars women from serving on a religious council -

           

            ... there would have been room to seek a balance and compromise between the two poles. For we are concerned here with a religious council which, although a statutory, administrative body and therefore subject to the statutory principles, is also a body whose functions, and its functionaries, are closely associated with the world of the halakha, and it would have been proper to try and bridge the two opposites.

           

            In this respect I wish to note that whatever the nature of such balancing, it cannot be based on negation of the equality principle, and the balance must always be based on the premise of equality. Furthermore, the act of balancing can be done only if there is evidence that the public interest in the maintenance of religious services will be actually affected if full effect is given to the principle of equality. Mere apprehension is not sufficient. It must be shown that insistence on the principle of equality alone will affect the functioning of the religious services. Only if there is actual proof of this, will there be room to consider whether such consideration should be weighed along with the principle of equality. Finally, it will be possible to take such consideration into account only after having exhausted all the legal processes that would ensure the proper functioning of the religous council in full observance of the principle of equality. Striking a balance with the principle of equality is a means of last, not first, resort. Therefore one must first inquire whether all legal measures have been exhausted to ensure that the chief rabbinate (from whom the rule issued that women should not be included in religious councils) shall also act within the frame of the law. One should not forget that the chief rabbis also act within the frame of the law, and the principle of equality which applies to everyone, applies to them too. There is equality even in applying the principle of equality.

           

            M. BEN-PORAT, D.P.: I agree that the petition should be admitted, which is the conclusion reached by my esteemed colleagues, albeit with some differences of "emphasis".

           

          Order nisi made absolute and petition granted as stated in the decision of Elon J.

      

          Judgment given on May 19, 1988.

 

CrimA 111A/99

Arnold Schwartz

v.

State of Israel

 

The Supreme Court Sitting as the Court of Criminal Appeal

[June 7^th, 2000]

Before President A. Barak, Vice-President S. Levin, Justices T. Or, E. Mazza, M. Cheshin, Y. Kedmi, T. Strasberg-Cohen, D. Dorner, D. Beinisch

 

Application to the Supreme Court sitting as the Court of Criminal Appeals for the stay of the execution of a sentence.

 

Facts: The applicant was convicted in the District Court in Tel-Aviv-Jaffa of two offenses: the commission of rape under section 345(A)(1) of the Penal Law 5737-1977 and the commission of sodomy, an offense under section 347(A) of the Penal Law.  The applicant was sentenced to four years in prison, of which three years were of actual imprisonment and one year was on probation.  In addition the court ordered the applicant to compensate the complainant in the amount of NIS 10,000.  At the time the conviction was handed down, at the request of the applicant’s counsel, the District Court stayed the date of commencement of the applicant’s sentence by one month.  The application was brought before Justice Zamir who determined that execution of the prison sentence imposed would be stayed until a further decision was made on the application.  Justice Zamir transferred the application to the President of the Court for a decision as to whether it would be appropriate to transfer the application to a decision before an extended panel of Justices, and the President of the Court ordered consideration of the application before an extended panel of nine justices.

 

Held: The Court held that it would be appropriate to delineate standards for applications to stay execution of prison sentences of persons who have been convicted and sentenced to a prison term and whose appeal is pending.  The Court detailed those standards and considerations and held that while in the specific circumstances of the present case those standards dictate that the execution of the prison sentence should likely not have been stayed, nonetheless, due to the fact that the applicant has been free on bail for a long period of time since the sentence was handed down, and in consideration of the date that had been set for hearing the appeal, the Court did not in fact order the immediate imprisonment of the applicant. 

The Court also considered, in a preliminary discussion, the application of the Public Defender’s Office to participate in the proceeding as a “friend of the court.”  The Court held that the joining of the Public Defender as a “friend of the court” was to be allowed in this case.

Justice Kedmi agreed with the final outcome of the judgment but added qualifying comments.  In addition, Justice Kedmi disagreed with the holding that allowed the Public Defender to be joined as a “friend of the court.”

 

 

Legislation cited:

Penal Law 5737-1977, ss. 43, 44, 87, 87(a), 87(c), 345(a)(1), 347(a), ch. 6, sections B, H.

Basic Law: Human Dignity and Liberty, ss. 5, 10.

Basic Law: the Judiciary, s. 17.

Criminal Procedure (Enforcement Powers – Arrests) Law 5756-1996, ss. 21(a)(1)(c), 44.

Bail Ordinance 1944. 

Criminal Procedure Law 5725-1965.

 

Draft legislation cited:

Amendment to Penal Law (Methods of Punishment) Draft Proposal Hatzaot Hok no. 522.

               

Israeli Supreme Court cases cited:

[1]     RA 7929/96 Kozali and Others v. State of Israel (not yet reported).

[2]     CrimA 608/81 Benyamin Ben Maier Suissa v. State of Israel IsrSC 37(1) 477

[3]     FH 16/85 Harrari v. State of Israel, IsrSC 40(3) 449.

[4]     CrimA 757/85 State of Israel v. Harnoi IsrSC 39(4) 292.

[5]     CrimA 1100/91 State of Israel v. Jeffrey IsrSC 47(1)418.

[6]     MAppCrim 2161/92 Fadida v. State of Israel (unreported).

[7]     MApp 123/76 Ikviah v. State of Israel IsrSC 30(3) 223.

[8]     MA 24/55 Shlomo Porat (Perlberg) v. Attorney General of Israel IsrSC 9 673.

[9]     MApp 2/52 Locksner v. Israel Attorney General IsrSC 1(1) 169.

[10] Mot 118/79 Richtman v. State of Israel IsrSC 33(2) 45.

[11] Mot 156/79 Kobo v. State of Israel IsrSC 33(2) 63.

[12] Mot 132/81 Pitusi v. State of Israel IsrSC 35(2) 817.

[13] MApp 430/82  Michalshwilli v. State of Israel IsrSC 36(3) 106.

[14] MApp 10/62 Cohen v.  Attorney General IsrSC 17 534.

[15] MApp 183/80 Sharabi v. State of Israel IsrSC 34(4) 517.

[16] Mot 52/50 Maatari v. Attorney General of Israel IsrSC 4 414.

[17] MAppCrim 166/87 State of Israel v. Azran and Others, IsrSC 41(2).

[18] MAppCrim 2599/94 Danino v. the State of Israel (unreported).

[19] CrimA 8549/99 Ben Harosh v. State of Israel (unreported).

[20] CrimA 3695/99 Abu Keif v. State of Israel (unreported).

[21] CrimA 4263/98 Luabna v. State of Israel (unreported).

[22] CrimA 3594/98 Ploni (John Doe) v. State of Israel (unreported).

[23] CrimA 1050/98 Siamo v. State of Israel (unreported).

[24] MAppCrim 6877/93 Ploni (John Doe) v. State of Israel (unreported).

[25] MApp 28/88 Sussan v. State of Israel (unreported).

[26] MAppCr 4331/96 ElMakais v. State of Israel IsrSC 50(3) 635.

[27] MAppCr 5719/93 Forman v. State of Israel (unreported).

[28] MAppCr 6689/94 Attias and others v. State of Israel (unreported).

[29] MAppCr 8574/96 Mercado v. State of Israel (unreported).

[30] MAppCr 8621/96 Kuzinski v. State of Israel (unreported).

[31] MAppCr 4590/98 Sharabi v. State of Israel (unreported).

1. CrimA 7068/98 Hachami v. State of Israel (unreported).

[33] CrimA 9/55 Yegulnitzer v. State of Israel IsrSC 9 891.

[34] CrimA 125/74 Merom, Corporation of International Commerce, Ltd. and others v. State of Israel IsrSC 30(1) 57, at p. 75).

[35] MAppCr 3360/91 Abu Ras and others v. State of Israel (unreported).

[36] CrimA 7282/98 Uda v. State of Israel (unreported).

[37] HCJ 6055/95 Sagi Zemach and others v. Minister of Defense and Others (not yet reported).

[38] HCJ 87/85 Argov and others v. Commander of the IDF Forces for Judea and Samaria, IsrSC 42(1) 353.

[39] HCJ 1520/94 Shalem v. Labour Court and others, IsrSC 58(3) 227.

[40] MAppCr 2708/95 Spiegel and others v. State of Israel IsrSC 59(3) 221.

[41] LCA 5587/97 Israel Attorney General v. Ploni (John Doe) IsrSC 51(4) 830.

[42] MApp 15/86 State of Israel v. Tzur, IsrSC 40(1) 706.

[43] MAppCr 537/95 Genimat v. State of Israel IsrSC 49(3) 335.

[44] HCJ 1715/97 the Office of Investment Managers in Israel and others v. Ministry of Finance and others, IsrSC 51(4) 367.

[45] MAppCr 3590/95 Katrieli v. State of Israel (unreported).

[46] MAppCr 37171/91 State of Israel v. Golden IsrSC 45(4)807.

[47] MAppCr 4092/94 Tioto v. State of Israel (unreported).

[48] CrimA 6579/98 Friedan v. State of Israel (unreported).

[49] CrimA 3602/99 Ploni (John Doe) v. State of Israel (unreported).

[50] CrimA 3976/99 Ephraimov v. State of Israel (unreported).

 

American cases cited:

[51] U.S. v. Miller 753 F.2d 19 (1985).

[52] McKane v. Durston 153 U.S. 684 (1894).

[53] Jones v. Barnes 463 U.S. 745 (1983).

 

Canadian cases cited:

1. R v. Demyen (1975) 26 C.C.C, 2d 324, 326.
2. R v. Pabani (1991) 10 C.R., 4th. 381.
3. Mcauley v. R (1997) Ont. C.A. Lexis 3.
4. Baltovich v. R (1992) Ont. C.A. Lexis 257.
5. R v. Parson (1994) 30 C.R. 4th 169.
6. R. v. Farinacci (1993) 86 C.C.C. 32.
7. Cunningham v. Canada (1993) 80 C.C.C 492.
8. Miller v. The Queen (1985) 23 C.C.C 99.
9. R v. Branco (1993) 87 C.C.C 71.

 

Israeli books cited:

1. S. Levin The Law of Civil Procedure – Introduction and Basic Principles (5759-1999)

 

Israeli articles cited:

1. S. Levin ‘Basic Law: Human Dignity and Freedom and Civil Legal Processes,’ Hapraklit 52 (1986) 451.
2. Bendor, ‘Criminal Procedure and Law of Evidence: Development of Individual Human Rights in Procedural Criminal Law,’ The Annual Book for Law in Israel (Tel-Aviv, 1986) 481.

 

Foreign books cited:

1. R. Pattenden English Criminal Appeals 1844-1994 (Oxford, 1996).
2. Stuart Charter Justice In Canadian Criminal Law (Scarborough, 2nd ed., 1996).
3. W.R. LaFave, J.H. Israel Criminal Procedure (St. Paul, 2nd ed., 1992).
4. P.W. Hogg Constitutional Law of Canada (Scarborough, 4th ed., 1997).

 

Foreign articles cited:

1. M. Damaska “Structures of Authority and Comparative Criminal Procedure” 84 Yale L.J. (1974-1975) 480.
2. D.L. Leibowitz “Release Pending Appeal: A Narrow Definition of ‘Substantial Question’ under the Bail Reform Act of 1984” 54 Fordham L. Rev. (1985-1986) 1081.
3. M.M. Arkin “Rethinking The Constitutional Right To a Criminal Appeal” 39 UCLA L. Rev. (1991-1992) 503.
4. A.S. Ellerson “The Right To Appeal And Appellate Procedural Reform” 91 Colum. L. Rev. (1991) 373.
5. D. Gibson “The Crumbling Pyramid: Constitutional Appeal Rights in Canada” 38 U.N.B. L.J (1989) 1.
6. T.W. Cushing “Raising a ‘Substantial Question’: The Key to Unlocking the Door Under the 1984 Bail Reform Act” 62 Notre Dame L. Rev. (1986) 192.

 

Other:

1. 8A Am. Jur. 2d (Rochester and San Francisco, 1997).

 

 

 

For the Applicant—D. Ronen

For the State —N. Ben-Or, A. Shaham

For the Public Defender-K. Mann, D. Pinto, D. Ohana, R. Yitzhaki

 

JUDGMENT

Justice D. Beinisch

By what standards will an application to stay execution of a prison sentence of a person who has been convicted and whose appeal is pending be considered?  That is the issue brought before us in this application.

The facts in the background of the fundamental discussion before us are as follows:

1.  The applicant was convicted in the District Court in Tel-Aviv-Jaffa of the offense of rape under section 345(A)(1) of the Penal Law 5737-1977 (hereinafter: “the Penal Law”) and for committing sodomy, an offense under section 347(A) of the Penal Law.  Following his conviction, the applicant was sentenced to four years in prison, including three years of actual imprisonment and one year on probation.  The court also ordered the applicant to compensate the complainant in the amount of NIS 10,000.  At the time the conviction was handed down the District Court granted the application of the applicant’s counsel and stayed the date of commencement of the sentence by one month.

2.  The applicant appealed the decision to this court.  At the time of the filing of the appeal, his counsel submitted the application before us to stay execution of the sentence imposed on him (hereinafter: “application for stay of execution”).  On 1.21.99 Justice Zamir determined, after hearing the parties’ arguments, that execution of the prison sentence imposed on the applicant would be stayed until a further decision was made on the application.  Justice Zamir noted in his decision that in accordance with the accepted policy of this court as to applications for stay of execution “it is doubtful that it is appropriate, in this case, to stay the commencement of the prison term.”

However, the judge decided that it would be appropriate for the application before him to be transferred to the President of the Court for a decision as to whether it would be appropriate to transfer the application to a decision before a panel.  Justice Zamir explained his decision as follows:

“Lately thought has been given to the accepted policy of this court regarding applications for stay of the execution of imprisonment until the disposition of the appeal.  Various approaches have been expressed by judges in the case law. (See, for example, HCJ 3501/98 Dekel v. State of Israel; CrimA 7068/98 Hachami v. State of Israel).  The doubt as to the accepted policy of the court in this matter has drawn in part from the Basic Law: Human Dignity and Liberty; and in part from the customary practice in certain countries.

It appears to me that it is not appropriate to go on with the present situation, in which each justice considering applications for stay of execution makes a decision according to his world view, and the time has come for this court develop a policy that will be able to guide every judge considering such applications.”

In light of this decision, the President of the Court ordered consideration of the application before an extended panel of nine justices.

3. Before turning to the examination of the substance of the issue which has arisen before us, we must give thought to the preliminary issue that has come up during the course of the consideration of the case, which is the issue of the status of the Public Defender in the framework of the proceedings in this court.   After the application was brought for consideration before an expanded panel, the Public Defender submitted an application before the court entitled “application to submit a written brief as a friend of the court.”  The applicant’s counsel consented to the application and the State opposed it.  On 5.19.99, after hearing the parties’ arguments on the matter, we determined that we would grant the application in such a manner that the Public Defender would be allowed to submit a brief.  We further determined that “the decision whether to affirm the argument itself as well as the decision as to the status of the Public Defender in this case – would be considered by the panel in the judgment.”

The issue of recognition of the institution of “friend of the court” in our legal system in general, and the status of the Public Defender as “friend of the court” in particular, was considered in the judgment of President Barak in RA 7929/96 Kozali and others v. the State of Israel [1].  In his decision on this matter the President distinguished between the question of the authority of the court to order the joinder of a person or entity to a proceeding before it with the status of “friend of the court,” and the question of the discretion the court is to exercise when making the decision on an application to join such a party or person.  In accordance with that decision, the authority to join exists, in principle, and the court must examine in each and every individual case – according to its circumstances – whether it is to be exercised, in consideration of the totality of considerations relevant to the matter.  Such consideration relates primarily to the degree of potential contribution which is entailed in the requested joinder against the concern that such joinder would do damage to the efficiency of the discussion, to the parties and to their rights:

“One must stand guard in this matter and ensure that indeed there is in the joinder of another party to the proceeding a contribution to be made to the discussion itself and the public interest.  One is to examine in each and every case, whether such joinder does not cause damage to the efficiency of the deliberation, to the parties to the dispute and to their basic rights…  Indeed before a party or a person is given the right to express his position in a proceeding to which he is not an original party, the potential contribution of the proposed position is to be examined.  The essence of the applying entity is to be examined.  Its expertise, experience and the representation it affords the interest in whose name it seeks to join the proceeding.  The type of proceeding and its procedure is to be examined.  The parties to the proceeding itself are to be ascertained as well as the stage at which the joinder application was submitted.  One is to be aware of the essence of the issue to be decided.  All these are not comprehensive criteria.  There is not enough in them to determine in advance when it will be appropriate by law to join a party to the proceeding as a “friend of the court,” and when not.  At the same time these criteria must be weighed, inter alia, before such joinder is to be decided upon.” (Ibid. paragraph 45)

The issue that arises before us is a question of general importance in the realm of criminal procedure: it arises and is discussed as a matter of course before courts, and by its nature it is relevant to a broad public of accused persons.  Our discussion of the matter does not primarily focus on the concrete facts of the case, but the fundamental question which arises, inter alia, against the background of lack of uniformity in the law in practice.  In discussion of this type, the Public Defender, whose function by law is the representation of accused persons in criminal proceedings, has a clear interest.  In consideration of the expertise and the experience of the Public Defender in the representation of accused persons, their joinder to the proceedings before us may contribute to the deepening of the discussion and its clarification.  On the other hand, joinder of the Public Defender, at the phase in which the joinder application was submitted, will not burden the administration of the proceedings significantly, as it is merely an interlocutory proceeding in the framework of a pending appeals case.  Taking these considerations into account, we felt that the joinder of the Public Defender to the proceedings before us as “friend of the court” was to be allowed.

Claims of the Parties

4.  In detailed and thorough arguments, the parties laid out before us a broad picture, and supported each of their respective arguments with multiple references.  The sum of the argument of the applicant, joined by the Public Defender, is that the accepted approach in our case law as to the stay of execution of a prison term of a convicted person whose appeal is pending (which we will discuss later at length), is not appropriate and requires renewed examination and change.  According to the applicant’s claim, the law has no provision as to the immediate execution of the prison sentence, but rather the legislature left determination of the commencement of the execution of the prison term to the discretion of the court.  This argument relies on s. 44 of the Penal Law, which establishes that a court that imposes a prison term “may order that the sentence commence from the date it shall determine.”  As to the discretion given to the court to determine the date of commencement of the prison term, counsel for the applicant argues that the court is to adopt a “broadening” policy as relates to applications that deal with stay of execution during the pendency of the convicted person’s appeal on the judgment, in a manner that except for exceptional circumstances – which fall within the grounds for detention pending completion of the proceedings – the execution of the prison sentence will be delayed until the disposition of the appeal.  The applicant’s counsel rests his argument primarily on the status of the right of appeal, whether as a constitutional basic right or whether as a right of recognized central importance in our legal system, and on the presumption that immediate execution of a prison sentence, may, as a rule, harm effective realization of the right of appeal.

The Public Defender claims that the law practiced in Israel today in the matter of stay of execution of prison sentences during the pendency of an appeal is not clear cut; alongside judicial approaches which emphasize the immediate execution of the sentence as a board rule, and the stay of its execution as only an exception, there are to be found in the case law of this court – particularly in recent years – other approaches as well, which tend to broaden the range of cases in which the execution of the prison sentence will be stayed while the convicted person’s appeal is pending.  Thus, argues the Public Defender, even when the judicial rhetoric is seemingly strict in relation to the possibility of stay of an appeal, the application of the rules, in fact, tends to be lenient with applicants for stay of execution of prison sentences during the pendency of the appeal.  It is the argument of the Public Defender, in light of the murkiness as to the law that applies in the matter of stay of execution of prison terms during the pendency of the appeal, that it is appropriate to re-examine the issue.  In the framework of this examination, the Public Defender claims, central weight is to be given to concerns of irreversible harm to human liberty if after the imprisonment of the convicted person it turns out after the fact – once the appeal is heard –that the imprisonment was partially or entirely unjustified.  Thus, the Public Defender claims that the right of appeal as part of due process, is derived from the right to dignity and liberty and as such is a protected constitutional right in the provisions of the Basic Law: Human Dignity and Liberty.  According to the approach of the Public Defender in the framework of the proper balancing between the basic rights of the convicted person and the public interest in immediate enforcement of the judgment, the court, as a rule is to grant applications to stay execution of prison terms until the disposition of the appeal, with the exception of exceptional cases in which there is a reasonable risk of flight of the convicted person from the law, or that the convicted person poses a risk to public safety, or that particularly severe damage to public confidence in the enforcement system is expected.

The State seeks to rebut the arguments of the appellant and the Public Defender.  The starting point of the argument the State brought before us is that it is the directive of the legislature that a prison term is to be executed immediately upon sentencing.  The State learns this from the provision of section 43 of the Penal Law, according to which one who is sentenced to prison will have his prison term calculated from the date of sentencing, unless the court orders otherwise.  Alongside the rule of immediate execution, the legislature granted the court discretion to stay the execution of the sentence to another date, as per section 87(a) of the Penal Law.  The State argues that  the law followed by this court in the matter of stays of execution is stable and clear, and properly balances the various interests involved in the matter, and it is not proper to deviate from it.  According to the State’s approach, the Basic Law: Human Dignity and Liberty has no impact on the matter before us; it is a matter of existing legislation, which is not subject to constitutional review but merely interpretive influence.  Even as to this last issue, there is nothing in the Basic Law  which changes the accepted law followed by this court, according to which execution of the prison sentence will be stayed only in exceptional circumstances; the sum of the argument is that after the conviction of a person criminally, and his sentencing to prison, he no longer benefits from the presumption of innocence and he no longer enjoys the right to freedom from imprisonment.  His liberty has been denied by the judgment of an authorized court which sentenced him, and the question of stay of execution of a prison sentence no longer involves violation of personal liberty which is protected by the Basic Law.  To base this claim the State refers us to the approach of the American and Canadian Law in this matter.  Alternatively, the State claims, that even if the convicted person has the right to liberty which may be violated pursuant to consideration of the stay of the execution of his sentence, then the law that has come forth from this court, as to stay of execution of a prison sentence during the pendency of the appeal, fulfills the constitutional balancing required by the Basic Law.

The   Normative Framework

5. The practice of the law in the matter of the stay of execution of a prison sentence during the pendency of the appeal has developed in the case law of this court from its earliest days.  Tracing the developments in the case law reveals that from the beginning the law developed against the background of what was customary in British common law and this was applied in our system even before the relevant statutes in this matter were legislated, some of them directly, others indirectly.  Eventually, the case law based the law in practice on the construction of the legislated provisions.  Thus it was established that the rule is that a prison term is to be executed immediately and execution of a prison term is not stayed except “in extraordinary circumstances” or if there exist special circumstances which justify the stay.  This rule is anchored in the basic principle of our system, according to which the law is determined at the trial level, in which oral evidence is heard, and in which the facts are determined based on impressions of witnesses.  The level of proof required in a criminal proceeding is high – proof beyond a reasonable doubt – and with the conclusion of the proceeding, once it has been determined that guilt has been proven beyond a reasonable doubt, the convicted person is denied the presumption of innocence.  So too, in our system – unlike the continental system which views the consideration at the trial level and the appeals level as one unit – the appeal is not part of the criminal proceeding; the appeal is an additional proceeding, limited in its scope from the first proceeding since as a rule evidence is not heard during it, and it is a review proceeding.  As background, it must be remembered, that in common law countries, from where we have drawn the fundamentals of our system, determining guilt based on the facts is left to a jury which makes the determination in the trial court.  It appears that this legal structure, according to which one must separate the trial level from the appeals level, has influenced the development of the rule according to which upon the conclusion of the proceeding at the trial level expression is to be given to the punitive result dictated by the conviction.

Relevant Statutory Provisions

6. A number of statutory provisions relate to the matter before us.  Since we are dealing with the execution of a sentence that was imposed on a person after their criminal conviction, we will turn first to Chapter 6 of the Penal Law entitled “Modes of Punishment.”  In Title B of Chapter 6 above,  entitled – “Imprisonment,” there are two provisions relevant to our discussion – section 43 and section 44.  We will bring these provisions verbatim:

 

“Calculation of the Prison Term	43.	One who is sentenced to prison his prison term will be calculated from the day of the sentence, unless the court has ordered otherwise: if the convicted person was free on bail after the sentence, the days he was free will not be counted as part of the period of the sentence.
Postponed Imprisonment	44.	If the court imposes a prison sentence, it may order that the sentence commence from the date it shall determine.”

 

An additional provision which applies in our matter is found in section 8 of chapter 6 above, in section 87 of the statute:

 

“Postponement of Dates.	87	(a)  If a date is established for the execution of a sentence, in one of the sections of this chapter or by the court according to it, the court is permitted to stay the execution to another date.
		(b)  If the execution of the sentence was stayed according to subsection (a), the court may stay it an additional time for special reasons which will be recorded.
		(c)  The court staying the execution of a sentence according to this section may condition the stay on bail or other conditions as it sees fit; the provisions of sections 38 to 40 and 44 of the Criminal Procedure Law, 5725-1967 will apply to bail according to this section with the necessary changes.
		(d)  The court’s decision in accordance with this section is subject to appeal.”

As detailed above, each of the parties before us relied in their arguments on a different one of the three said provisions and regarded it as the relevant legislated framework for determining the date of execution of the prison term.  The state’s construction of section 43 of the Penal Law, according to which, as a rule, and lacking any other determination by the court, the commencement of the prison term begins with the sentencing, is consistent with the construction of said section in the case law.  Thus for example, Justice Shamgar has said regarding the construction of section 43 to the Penal Law, during discussion of a matter different than the one before us (in that matter the elements of the offense of escape from lawful custody were under consideration):

“The origin of the status of  “in custody” is a result of the integration of two significances attached to the sentence that is read to the convicted person: one, and this is the legal one, stems from the provisions of section 43 of the Penal Law, according to which: ‘one who is sentenced to prison his prison term will be calculated from the day of the sentence, unless the court has ordered otherwise…’ 

Meaning, the prison sentence begins to run from the date of the sentence, unless the court has ordered otherwise. . .    According to the simple words and the clear intent of the legislature, the broad rule is that, the prison term begins with the notice of the decision of the judicial authority.”

(CrimA 608/81 Benyamin Ben Maier Suissa v. State of Israel [2], at pp. 492-493.  Emphasis added – D.B.).

 

Similar things were stated by Justice Shamgar in FH 16/85 Harrari v. State of Israel [3] during consideration of the question of when the period of probation begins to be counted when extended by the court.

“The guiding rule which arises from the penal law is that, the commencement and the application of the sentence are from the date of the sentence, and that is, if the court has not ordered otherwise.  This is the provision of section 43 of the Penal Law that one who is sentenced to prison, his prison term will be calculated from the date of the sentence, unless the court has ordered otherwise.  The court may order a postponed sentence (section 44 or section 87 of the law above).”

(Ibid. at p. 454 emphasis added – D.B.)

7.  From the above, therefore, one may glean that, as a rule, the date of execution of a prison sentence imposed by the court is immediately upon the imposition of the sentence, unless the court has ordered otherwise.   

Alongside this rule, the legislature determined that the court may stay the date of   commencement of the prison sentence until a date other then the date of the imposition of the sentence.  To this end, all three statutory provisions that were quoted above are relevant.  The discretion given to the court to stay the date of execution of the sentence is learned from the language of section 43 itself (“unless the court has otherwise ordered”).   A separate determination as to this matter is found in section 44 of the Penal Law which is entitled “postponed imprisonment.”  It appears that according to the accepted  construction  of section 43 of the law, there is a certain overlap between the ending of section 43 and section 44.  (And indeed this was the approach of Justice Shamgar in CrimA 757/85 State of Israel v. Harnoi [4]:

“To a certain extent section 44 is no more than a more explicit statement of what was already implied from the determination in section 43. . .” )  As to section 87 of the Penal Law, its application is different from that of sections 43 and 44 at least in two primary areas.  First, section 87 deals with stay of the date of execution of a ‘sentence,’ not necessarily a prison sentence.  Second, section 87 enables the court to order the stay of execution of a sentence it handed down, even at a date after the date of sentencing.  (For the background to the legislation of this section see: CrimA 1100/91 State of Israel v. Jeffrey [5]).

To the statutory provisions mentioned above one must add an additional statutory provision which is also relevant to the matter of stay of execution of a prison term during the pendency of the appeal, and that is the directive established in section 44 of the Criminal Procedure (Enforcement Powers – Arrests) Law 5756-1996 (Hereinafter: “the Arrests Law”).  Section 44 above establishes the following:

“Release on Bail by the Court	44	(a)  A suspect who has not yet had an indictment filed against him, an accused or convicted person whose appeal is pending on his judgment and is under arrest or in prison, the court may, upon his application, order his release on bail or without bail.
		(b)  The court may order the accused or convicted  person, whose appeal is pending on his judgment, to post bail, even if it is not authorized to order his detention according to section 21 in order to ensure his appearance in court, and when it has done so, the accused or convicted person will be seen as one who was freed on bail.”

 

On the basis of the language of the section, it does not deal directly with the question of the date of commencement of the prison sentence.  But in fact it is directed at the same practical outcome that is likely to stem from stay of execution of the prison sentence according to sections 43, 44 and 87 of the Penal Law, which is that the convicted person remains free for the duration of  the period of the appeal subject to the conditions that were determined for his release (compare this with section 87 (C) of the Penal Law).  Therefore it has been decided, that the considerations that the court will weigh in an application for release of a convicted person on bail during the pendency of his appeal, will be identical to the considerations taken into account in an application to stay execution of a prison sentence until the disposition of the appeal (see MAppCrim 2161/92 Fadida v. State of Israel [6], stated by Justice Bach; and compare: MApp 123/76 Ikviah v. State of Israel [7].

With the exception of section 44 of the Arrests Law, there is nothing in the abovementioned sections of the law, in their language, which relates to the situation of stay of execution of a prison term specifically during the period of appeal, rather they are phrased in a broad manner without details as to  the grounds for the stay.  As a result of the multitude of sections in the law which relate to the matter, applications to stay the execution of prison terms for the pendency of the appeal are considered  by the appeals court in the framework of a number of procedural “tracks” whether as an application to stay execution according to section  87 of the Penal Law and its sections or whether as an application to be released on bail.  As stated above, the considerations that will be weighed by the Court in each of the above cases will generally be identical, although the issue of the relationship between the various “tracks” is not entirely clear.  It is interesting to note that in foreign legal systems, which we will discuss later, the issue which is the subject of our discussion is dealt with in sections of the law which deal with the release on bail during the pendency of the appeal of a person who was convicted and sentenced to prison, and in foreign literature and case law it is generally discussed under the title of “release on bail pending appeal.”  It is also to be noted that most of the initial decisions of the Supreme Court in which the accepted rules for stay of execution of the prison sentence were formulated were decided in applications to be freed on bail during the pendency of the appeal in accordance with the Bail Ordinance 1944 (which was cancelled in 1965 with legislation of the Criminal Procedure Law).  What is important for our purposes is that in not a single one of the law’s provisions which enable the court to stay or postpone the date of commencement of the prison sentence, did the legislature detail the considerations which will guide the court in its decision, including where an appeal on the conviction filed by the convicted person is at the foundation of the request to stay execution.  These considerations have been determined by the courts working within the framework of the authority given to them by the legislature, and we will turn to this now.

The Court Rulings in this Matter

8.  The construction that was given in the case law of this court  to legal provisions which give the court authority, with discretion, to stay the execution of the prison sentence or to release the convicted person on bail, during the pendency of appeal, was narrow.  The rule that was established was that a person who was convicted of a criminal offense, and who was sentenced to prison, would begin by serving his sentence immediately after the imposition of the sentence.  The rule that was established was that the cases in which execution of the prison term would be stayed  due to the filing of an appeal, would be “extraordinary” cases where “special circumstances” exist which justified it.  Among the many references for this approach (hereinafter for convenience we will call it – “the accepted approach”) we can bring the words of the Justice S.Z. Heshin in MA 24/55 Shlomo Porat (Perlberg) v. Attorney General of Israel [8].

“When the court comes to discuss the question whether it is appropriate to release on bail a person that has already been convicted but his appeal has not yet been heard, it is not entitled to ignore the determining fact that there is already a judgment against the applicant which sentenced him to prison, and only in extraordinary cases will the court or the judge hearing the application grant the request.”

(Ibid.).

(see also MApp 2/52 Locksner v. Israel Attorney General  [9]; Mot 118/79 Richtman v. State of Israel [10] at p. 47, 169; Mot 156/79 Kobo v. State of Israel [11] at p. 64; Mot 132/81 Pitusi v. State of Israel [12] at p. 819; 430/82 MApp Michalshwilli v. State of Israel [13] at  p. 107; This approach is similar to the English law in this matter see R. Pattenden, English Criminal Appeals 1844-1994 (Oxford, 1996) [66]112).

The primary reason mentioned in the case law for not staying the execution of a prison sentence during the pendency of the appeal is that with the conviction of the convicted person with the offense with which he is accused, the presumption of innocence from which he benefited until that time dissipates.  In the words of Justice Agranat:

“. . . the rule is, that prior to the conviction the person is presumed to be innocent, whereas after the conviction, the necessary presumption must be -- until it has been decided otherwise on appeal -- that he is guilty of the offenses of which he was convicted, and therefore a person will not be freed on bail at this stage, except under extraordinary circumstances.”

(MApp 10/62 Cohen v.  Attorney General [14] at p. 535).

In other decisions emphasis was placed on the existence of an authorized judicial decision which denies the convicted person's freedom, and which is valid and presumed to be legitimate as long as it has not been changed by the appeals court:

"It appears to me that in principle the determining element in this distinction (between the arrest of a person who has been convicted but not yet sentenced, and the stay of execution of a prison sentence that was imposed-- D. B.) is not  a suspect's innocence or conviction, but rather the phase at which he was convicted and sentenced, meaning the existence of a judicial decision as to denial of his liberty for the period of time detailed in the sentence.  The conviction in and of itself -- without a sentence of imprisonment -- does not constitute a "red line" between the two situations, and does not constitute but one consideration, although a weighty and serious one, in the totality of regular and accepted considerations in the consideration of the arrest of a person who has not yet been convicted."  (MApp 183/80 Sharabi v. State of Israel [15] at p. 519 emphases added -- D.  B.).

The case law mentions an additional reason for immediate execution of the sentence, except in extraordinary cases, and that is the threat of injury to public safety if the convicted person is freed during the period of appeal.  Justice Zemora discusses this in the first case in which the matter came up before this Court:

“The rule is: as to a person who was convicted and punished lawfully, public safety is to be preferred over the possibility that perhaps the convicted person will be acquitted in the appeal and it will turn out that an innocent person sat in prison.”  (Mot 52/50 Maatari v. Attorney General of Israel [16], at p. 416).

Alongside the concern for public safety the case law has recognized an additional public interest which is at the basis of the rule of immediate execution of a prison sentence, and that is the interest that is grounded  in effective enforcement of the criminal law and deterrence of potential offenders. (See MAppCrim 166/87 State of Israel v. Azran and Others [17]).

9.  As stated above, alongside the rule -- immediate execution of a prison sentence -- the case law has recognized exceptions which exist under those "special" or "extraordinary" circumstances in which it would be justified to stay the execution of the prison term despite the considerations that were detailed in previous case law.  These circumstances, in summary, are: when the conviction is for an offense that is not serious or where the circumstances of its commission are not serious; when the period of arrest which was imposed on the convicted person is short, relative to the time frame in which the appeal is expected to be heard, and there is a concern that until the determination of the appeal the convicted person will serve his entire punishment or a significant part of it; when there is a blatant possibility that the appellant will be successful in his appeal because of a manifest distortion on the face of the decision.  Justice Zamir summarized the accepted approach as to the stay of execution of a prison term as follows:

“the rule as to stay of the execution of a prison sentence was formulated some time ago, it was summarized clearly in Mot 156/79  Kobo v. State of Israel [11] and we still follow it.  The main points of the law, very briefly, are as follows:

A) The determining rule is that a person who has been sentenced to prison must begin serving his sentence immediately.  One does not stay execution of the prison sentence except "under extraordinary circumstances" or if there are "special circumstances" which justify a stay.

B) The special circumstances that are sufficient to justify a stay of execution are generally these: an offense that is not serious; a short prison term; a chance the appeal will be granted.  As to the chance that the appeal will be granted, it is necessary that in the convicting decision there is a clear distortion, or that there is a  pronounced  likelihood of success in the appeal.  To this end,  it is not necessary to examine in a detailed and concise manner the facts and reasoning on which the judgment is based.  It is necessary that the issue is apparent on the face of the decision.

Generally, the fact that the applicant was free on bail until his sentence was imposed, the fact that he does not constitute a serious risk to public safety, and that his family situation or business situation are difficult, are not sufficient to justify a stay of execution (MAppCrim 2599/94  Danino v. the State of Israel [18]).

This in fact has been the accepted law for many years, and justices in this Court follow it today as well (see for example, from among the many decisions, the following decisions: CrimA 8549/99 Ben Harosh v. State of Israel [19]; CrimA 3695/99 Abu Keif v. State of Israel [20]; CrimA 4263/98 Luabna v. State of Israel[21]; CrimA 3594/98 Ploni (John Doe) v. State of Israel [22]; CrimA 1050/98 Siamo v. State of Israel [23]; MAppCrim 6877/93 Ploni (John Doe) v. State of Israel [24]).

10.  Alongside the accepted approach as to stay of execution of a prison term during the pendency of appeal, another approach has developed over the years, which tends to be more flexible with the conditions for stay of execution until the disposition of the appeal of the convicted person.  The development of the broader approach has brought with it various grounds to justify the stay of the execution of the prison term and the freeing of the convicted person on bail until the conclusion of the hearing of the appeal, and the breaking out of the narrow framework of postponement of execution as only an exception.  This approach has been expressed in the words of Justice Bach in MApp 28/88 Sussan v. the State of Israel [25]:

“Personally,  I believe that if the convicted person’s chances of  winning the appeal seem good on the surface, and if in taking into account all the rest of the circumstances, such as the convicted person's criminal history and the danger that he poses to the public, there is no special reason for his immediate imprisonment, then the court is entitled to favorably weigh his release on bail until the appeal. . .  I also cannot entirely ignore the fact that it is a matter of a person with an entirely clean history,  that there is no apparent danger to be expected from him if execution of the sentence is stayed.  On the other hand, there is a risk, that if he is immediately arrested, and if he later wins his appeal, a result which as I stated, does not appear unreasonable, then he will serve a significant portion of a sentence which will later turn out to have been imposed unjustifiably.  In my opinion there is also a difference regarding a decision such as this between a defendant who was free on bail for the entire time before the judgment was handed down by the trial court, and a defendant that was detained pending the completion of the proceedings and seeks  now, after he has been convicted, to be freed from prison until his appeal is heard."

See also the decision of Justice Bach in MAppCr 4331/96 ElMakais v. State of Israel [26]; the decision of Justice Bach in MAppCr 5719/93 Forman v. State of Israel [27]; see also the decision of Justice Tal in MAppCr 6689/94 Attias and others v. State of Israel [28] which mentions the decision in Sussan in agreement above).

A different approach to the stay of execution of a prison sentence during the pendency of appeal in comparison to the accepted approach, has been expressed in the decisions of Justice Strasberg-Cohen in MAppCr 8574/96 Mercado v. State of Israel [29]; MAppCr 8621/96 Kuzinski v. State of Israel [30]; and MAppCr 4590/98 Sharabi v. State of Israel [31].  In these decisions Justice Strasberg-Cohen  reiterated that the rule is that the convicted person must serve the prison sentence immediately when it is imposed.  However, the Justice emphasized the need, in each and every case, to balance, in accordance with the circumstances and characteristics, the considerations and various interests involved in the matter of the stay of execution, while avoiding establishing rigid and limited categories of cases in which the imprisonment will be stayed until disposition of the appeal.  This is how this approach was presented by Justice Strasberg-Cohen in her decision in the Mercado case above:

"Indeed, it has been an accepted rule for us from long ago that a defendant who has been convicted, must serve his sentence as soon as it is imposed.  The reasons for this rule are well and good, both in the individual realm and in the public realm.  A person who is convicted and a prison sentence was imposed upon him is no longer presumed to be innocent and the very fact of his filing of an appeal does not reverse things and does not does put in the hands of the appellant a given right to stay his sentence.  As long as it has not been established otherwise on appeal, the convicted person is considered guilty by law and he must pay the price for his actions.  However, a conviction does not constitute the end of the matter.  The law has put in the hands of a person lawfully convicted, the right of appeal, which if he takes advantage of, will put his conviction and the punishment that was imposed on him, under the scrutiny of a higher court and only after the appeal is heard will the court have its final say.  We are faced with a clash between various interests worthy of protection.  On the one hand, the convicted defendant must pay the price for the deeds for which he was convicted and serve his punishment without delay, and the legal system must take care that the sentence is implemented immediately.  On the other hand, society must take care that a person does not serve a punishment of imprisonment for nothing, and that his liberty is not taken away from him when at the completion of the proceeding, he may be acquitted.  In my opinion, it is preferable to stay the prison term of ten defendants whose appeal was denied, rather than have one defendant serve his prison term, that it later turns out he did not have to serve.  However, it is not sufficient to merely file an appeal to bring about the stay of execution of a prison sentence, for if you would say so, then every prison sentence should be stayed, and I do not believe that it is correct to do so.  In order to find the right balance, we have at our disposal tools that we can use to measure and weigh all the relevant considerations and conduct a proper balancing between them."

A more sweeping approach which calls for a change in the accepted rules in the matter of stay of execution of prison terms during the period of appeal, is to be found in the decision of Justice Ilan in CrimApp 7068/98 Hachami v. State of Israel [32].

“I believe that the time has come to review the rule that a person should serve their sentence, even in if they have filed an appeal.  The reason for this is, that after the defendant has been convicted and is no longer presumed to be innocent it is proper that he serve his sentence as close as possible to the commission of the offense and the more the date is postponed -- the less efficient the punishment.  Despite this, everyone agrees that in the case where a relatively short prison term has been imposed, the execution of the punishment is to be deferred until the disposition of the appeal, lest the appellant serve his entire sentence by the time the appeal is heard.  This is also the position of the prosecution.  In my humble opinion the concern here is not just that perhaps a person will serve their entire sentence and then be acquitted.  Even a person who has been sentenced to six years in prison and serves two years by the time he is acquitted on his appeal has suffered an injustice despite the fact that  four years that he will not serve remain.

. . .  

In my opinion, the rule must be that a person should not serve their sentence until the judgment is final, unless there is a serious concern that it is not possible to guarantee that he will appear to serve his sentence or that he poses a danger to the public."

(Emphasis added -- D.  B.)

In addition to the decisions mentioned, which express each in its own way a deviation from the accepted approach, it is possible to point to decisions of the court which do not explicitly deviate from the position above, but in fact broaden the circumstances in which execution of a prison term is stayed.  From various decisions of justices of this Court there appears to be a tendency at times to take into consideration the fact that the applicant was free on bail during the course of his trial, his clean history and other personal circumstances.  Moreover, many of the decisions that were handed down do not give weight to the appeal’s chances of success and do not apply the test of "the chances of success of the appeal are apparent on the face of the judgment."  These decisions to a certain degree changed the normative picture of the situation in this matter as it appears in fact.  The Public Defender tried to persuade us with its arguments and the data presented, that in fact the courts have abandoned the guiding rule as to the immediate execution of a prison sentence, even if they avoided declaring a new policy.  It is difficult to reach this conclusion from the data that the Public Defender presented before us; this data relates primarily to decisions on appeal in the district courts that deal with relatively short prison terms that were imposed in the trial courts, and do not necessarily lead to the conclusions which the Public Defender reached.  However, it can be said that in the judgments of this Court there exists in point of fact a process of greater flexibility in the accepted approach and a broadening of the range of cases in which prison terms are stayed until the conclusion of the hearing of an appeal filed by the convicted person.

Stay of Execution of a Sentence of Imprisonment During the Period of the Appeal-Discussion

11. The first question we must ask is, is there a justification for re-examining the rules that apply in the matter of stay of execution of a prison sentence during the pendency of the appeal?  It appears that a re-examination is justified as described in the decision of Justice Zamir in the matter before us; from the details of the decisions mentioned above it appears that indeed there have been breaks in the accepted approach in the matter of stay of execution of a prison sentence during the pendency of the appeal and a certain lack of clarity has developed in light of the various approaches apparent in the case law of this court.  Moreover, the law  in the case, that was first developed about 50 years ago, grew against the backdrop of British law and developed in a normative environment in which significant changes have occurred over the years.  Among other thing significant changes have occurred in the areas of criminal law and process, the Basic Law: Human Dignity and Freedom was passed and there has been development in the status of the right of appeal.  These changes in the substantive law have practical ramifications, which indirectly impact the matter before us.  Thus, for example, the change that occurred in the  law of arrests with the passing of the Arrests Law influenced not only the fundamental realm, but also increased the number of accused who are released on bail during their trial; a fact which has increased the number of accused who at the stage of decision on an application to stay execution are being denied their freedom for the first time.  This re-examination is necessitated therefore, in light of the changes that have occurred in our law over the years, which justify examining the validity of the law against the backdrop of the normative reality of our own time.  We will turn to this now.

12. As a starting point for our discussion we are guided by the statutes which apply to the matter of stay of execution of a prison sentence during the pendency of the appeal.  As has been said above, section 43 of the Penal Law,  as it has been constructed  in case law,  establishes that a prison sentence is to be executed immediately upon sentencing, unless the court has ordered otherwise.  Decisions of this court in which it has been determined that the rule is that imprisonment during the period of appeal is not to be stayed except in special and extraordinary circumstances, apparently is consistent with the general guideline that arises from the language of section 43 as to the immediate execution of imprisonment.  However, it must be emphasized that the case law that determined the law in this case, was not generally anchored in statutory language.  It can even be said that such law is not necessarily to be concluded  from the language of the statute.  From the version of the section and its legislative placement it can be concluded that it establishes a general guideline as to the date of the execution of the sentence and the manner of calculation of the prison term, and is not exclusive to the circumstances of filing an appeal on the judgment.  In other words, the section applies to the sentencing phase and by the nature of things does not distinguish in the matter of  the date of execution of the sentence between a situation where an appeal has been filed and other situations.    As to sections 44 and 87 of the Penal Law, they too do not explicitly relate to the question of stay of execution of the sentence during the pendency of appeal; section 44 was originally intended to give the court authority to establish in the sentence, a later date for execution of the prison term, while the aim of section 87 of the Penal Law is to grant the court the authority to stay yet again the date of execution of the prison sentence  (see Amendment to Penal Law (Methods of Punishment) Draft Proposal Hatzaot Hok no. 522 at p. 246, an amendment that was legislated as a result of CrimA 9/55 Yegulnitzer v. State of Israel [33], in which it was established that the court does not have the authority to stay the execution of a prison sentence from the moment that a date has been set for the commencement of its execution).  It may, therefore, be said that section 43 and sections 44 and 87 of the Penal Law do not delineate a framework that  limits the courts to stay of the execution of the sentence during the pendency of the appeal exclusively to “special” or “extraordinary” cases.

As can be seen from the above, the provisions of the Penal Law do not relate explicitly to the stay of execution of a prison sentence upon the filing of an appeal on a conviction.  However, when we come to examine the effect of filing an appeal on the date of execution of the sentence, we must take into account the accepted essence of the appeal process in our legal system.  According to our system, as opposed to what is customary in other Western European countries, the appeal in its essence is a separate process of review of proceedings that took place in the lower court.  In the European system, it is the principle of “double instances” according to which the two proceedings are handled as one unit, and the party is entitled to have both instances consider his case both from the legal and factual perspectives, that is accepted.  Because the process is not based to begin with on hearing oral evidence, the appeals court is not limited in receiving additional evidence, and as a rule the lower court does not have an advantage over the appeals court.  Apparently, for this reason, filing an appeal normally stays the execution of the decision of the lower court until the conclusion of the appeal proceedings.  We have already stated that unlike the European system, according to our system, when the proceeding in the lower court is completed the accused’s matter is decided by an authorized court, after having heard evidence and after having examined it by the stricter standard that is required in a criminal proceeding, and with this the conviction phase is complete.  Accordingly, the fact of realization of the right of appeal to an appeals court – which is the court of judicial review  -- does not necessitate stay of execution of the sentence, but rather at that phase it is necessary to express the consequences necessitated by the conviction, including execution of the sentence.  (for the difference between the two systems see S. Levin The Law of Civil Procedure – Introduction and Basic Principles (5759-1999) [63] at pp. 30-33, 185-186; and see  M. Damaska ‘Structures of Authority and Comparative Criminal Procedure’ [70]at 489-90).

Stay of the execution of the sentence is not therefore necessitated by the very filing of the appeal, and is a matter given over to the discretion of the court.  When the application is made at the sentencing hearing it is decided by the court imposing the punishment: when the stay is requested after the appeal is filed, the decision is in the hands of the appeals court.  The court which imposes a prison sentence and decides to stay the execution of the sentence takes into account circumstances related to the defendant and the offense and among other considerations may take into account the need to enable the defendant to file an appeal.  After filing an appeal on a decision in which a prison sentence was imposed, the appeals court has another consideration which can influence the range of considerations which relate to the date of execution of the prison sentence.  The decision as to the stay of the execution of the prison sentence during the pendency of the appeal will take into account, apart from the broad rule as to immediate execution of the prison sentence also special considerations which relate to the existence of a pending appeal on the decision.  Therefore, even if from the statutory clauses we learn a broad rule of immediate execution of the sentence, still the fact of filing an appeal can influence the manner of exercise of the discretion of the court as to the stay of execution of the sentence in accordance with the authority given to it by law, and it may change the balance between the various considerations entailed in the question of the date of commencement of execution of the prison sentence.

13. As a rule, exercising discretion as to deciding the question of stay of execution of a prison sentence entails a balance between considerations which relate on the one hand to the public interest, and on the other, to the interests of the individual involved.  Filing an appeal brings in further considerations which are also related to both public and private interests.  The proper balance of the totality of considerations related to the issue will determine in which cases the convicted person-appellant will begin to serve his sentence immediately, and in which cases execution of the sentence will be deferred until the disposition of the appeal.

There is no doubt that the broad rule regarding immediate execution of a prison term rests on the public interest of effective enforcement of the law.  This interest has several aspects: first, release of a person who has been convicted of a criminal offense may endanger public safety and security; this is particularly so when it is a matter of someone who was convicted of an offense that by its nature and the circumstances of its commission indicates a risk.  Second, release of a person sentenced to prison, may undermine execution of the sentence due to the flight of the convicted person from the law, and in certain circumstances of a pending appeal there may also be the fear of obstruction of justice.  It would appear that these aspects of the public’s interest in immediate enforcement are not in question.  They are learned a fortiori from the law of detention pending completion of the proceedings which enable denying the liberty of a person who enjoys the assumption of innocence where there is a reasonable basis for their existence.  When it is a matter of a person who has been convicted and sentenced, the weight of such considerations intensifies; it is a matter of a person who no longer enjoys the presumption of innocence, but is in the realm of a criminal who has been convicted and against whom a prison sentence has been imposed.  This fact can have an impact both on assessing the danger of a person, as we are no longer basing this on prima facie evidence but rather on a reliable  judicial determination that has been made on the basis of a foundation of the more stringent rules of evidence of criminal law, and on the fear of flight from the law, due to the concrete and real threat of imprisonment.

The public interest in immediate enforcement of imprisonment has an additional aspect, which relates to the need to enact effective action of the law enforcement mechanisms while maintaining public confidence in them.  The stay of the execution of a prison sentence may cause a large time delay between the date of the sentencing and the date the sentence is served, during which time a convicted person will be free to walk about.  This has the potential to damage the effectiveness of criminal punishment, as “the more time that passes between the commission of a crime or the discovery of a certain crime and the time the criminal is convicted, the lesser the deterring influence of the punishment imposed on others which may be offenders like him.” CrimA 125/74 Merom, Corporation of International Commerce, Ltd. and others v. State of Israel [34] at p. 75).  When a person who has been convicted of a crime and sentenced to prison walks about freely just as before, the deterrence of potential offenders may be hindered.  Justice Winograd discussed this in MAppCr 166/87 State of Israel v. Azran and others [17]).

“An incident such as this has an echo, and the release of the respondents, after they have been convicted, has or may have, a damaging effect, on potential offenders, who will mistakenly believe, that even though John Doe was convicted of rape, he is walking around free as though nothing happened.” (Ibid. at p. 810). 

Justice Dov Levin has also discussed the deterrence consideration:

“The starting point is that there is a presumption that he who has been convicted by the court of first instance is no longer presumed to be innocent and must be held accountable for his actions.  An unnecessary delay which is not necessitated by special reasons damages the deterrence aspect of the punishment.”  MAppCr 3360/91 Abu Ras and others v. State of Israel [35] (emphasis added D.B.)

 

See also the words of Justice Türkel in CrimA 7282/98 Uda v. State of Israel [36]:

“It is a matter of serious offenses and there is significance to the fact that it will be said that he who was convicted of their commission will be held accountable for them immediately after sentencing or closely thereafter.”  Moreover, public confidence in law enforcement authorities and the effectiveness of their actions, may be damaged as a result of the release of offenders who have been convicted and sentenced.  Before legislation of the Arrests Law, there was debate in this court whether considerations of deterrence and public confidence were relevant consideration in decisions as to detention pending completion of the proceedings in serious offenses.  But it is commonly accepted opinion that at the phase following overturn of the presumption of innocence, when a person’s guilt has been determined and his sentence passed, considerations related to deterrence and maintenance of the effectiveness of criminal punishment are relevant and proper.  These considerations are also relevant in the framework of exercise of discretion as to stay of execution of a prison sentence during the pendency of the appeal.  Similar considerations, related to deterrence, effective enforcement and fear of harm to public confidence in law enforcement systems as a result of the release of offenders after conviction and while their appeals are heard, we also find in the case law of other countries whose systems are similar to ours.  Thus, for example, in U.S. federal law emphasis has been placed on the element of deterrence in the framework of considerations related to the possibility of release on bail after conviction and until the disposition of the appeal.  This consideration was one of the considerations which was at the basis of the legislation of the Bail Reform Act of 1984 which made the conditions for release of convicted persons on bail during the period of appeal significantly harsher than  prior law.  (See U.S. v. Miller [51]; D. L. Leibowitz Release Pending Appeal: A Narrow Definition of ‘Substantial Question’ under the Bail Reform Act of 1984 [71] 1081, 1094).

In Canada, as in the United States, the issue of stay of execution is legislated in the framework of statutes regarding the release of a convicted person during the period of appeal.  Section 679(3) of the Canadian Criminal Code establishes the conditions for release during the period of the appeal.  Subsection (c) conditions the release of a convicted person during the appeal, inter alia, with the fact that “His detention is not necessary in the public interest."  The appeals courts in several Canadian provinces interpreted the above condition as including, inter alia, the consideration of the impact of the release of the convicted person on public confidence in the law enforcement systems.

“I think it can be said that the release of a prisoner convicted of a serious crime involving violence to the person pending the determination his appeal is a matter of real concern to the public. I think it can be said, as well, that the public does not take the same view to the release of an accused while awaiting trial. This is understandable, as in the latter instance the accused is presumed to be innocent, while in the former he is a convicted criminal. The automatic release from custody of a person convicted of a serious crime such as murder upon being satisfied that the appeal is not frivolous and that the convicted person will surrender himself into custody in accordance with the order that may be made, may undermine the public confidence and respect for the Court and for the administration and enforcement of the criminal law.”  (R v. Demyen [54])

For additional judgments in which a similar approach was adopted see R v. Pabani [55]; Mcauley v. R [56]; Baltovich v. R [57].

It should be noted that in Canadian case law there are also other opinions which emphasize, in the framework of the “public interest” test, the fear of “pointless imprisonment.”  Lacking case law of the Canadian Supreme Court on the matter, it appears that the more accepted approach is the one presented in the Demyen case above: “At this point, it is seen to be an intelligible standard under which to maintain confidence in the administration of justice” (D. Stuart Charter, Justice In Canadian Criminal Law (2nd ed., 1996) [67] 357).  It should be commented that the approach which emphasizes the importance of the public interest in immediate enforcement of the prison term was expressed in the Demyen case above and in other cases in relation to serious offenses of violence.

14. As said, the public interest with its various aspects, including considerations of deterrence, effectiveness and protection of  public confidence in the law enforcement system, still hold when we are discussing the matter of stay of execution of a prison sentence during the pendency of the appeal.  However, where there is an appeal of a decision in which imprisonment has been imposed, the fear of damage to the public interest and the weight it is to be given is of a more complex nature.  Against the considerations we have listed above, there stands the need to avoid irreparable and significant damage to the convicted party due to his immediate imprisonment, if it turns out after the fact – after his appeal was heard – that his imprisonment was not justified.  The severity of such injury is not to be underestimated.  “. . .denying his personal liberty is a particularly harsh injury.  Indeed,  denying personal liberty by way of imprisonment is the most difficult punishment that a civilized nation imposes on criminals.”  (In the words of Justice Zamir in HCJ 6055/95 Sagi Zemach and others v. the Minister of Defense and Others [38] in paragraph 17)  Such an injury is not just the business of the individual but touches on the interests of the general public; the clear public interest is that people who will eventually be declared innocent in a final judgment not serve time in prison.  Moreover, the public confidence in legal systems and enforcement may be severely injured if it turns out after the fact that the prison time served was not justified.  Justice Strasberg-Cohen pointed this out in MAppCr 4590/96 (Mercado) [31] above:

“Indeed as a rule, the accused who is convicted is to serve his sentence without delay and is not presumed to be innocent, non-immediate execution is likely to damage public confidence in the system, however, the acquittal of a convicted person on appeal after he has served a prison sentence that was imposed on him, may damage public confidence in the system, no less so.”

A similar approach was expressed in Canadian case law:

“Whatever the residual concerns which might cause individuals to question their confidence in a justice system which releases any person convicted of murder pending appeal, they would, in my view, pale in comparison to the loss of confidence which would result from an ultimate reversal of the verdict after Mr. Parsons had spent a protracted period in prison." (R v. Parson [58]).

15. Realization of the right of appeal which is given to the convicted person by law is also a consideration which the court must take into account when determining the question of stay of execution of a prison term.  In order to determine the matter before us I do not find it necessary to make a determination as to the weighty question of the legal status of the right of appeal.  I will note only that the claim of the applicant’s counsel in this matter that from the very anchoring of the right of appeal in section 17 of the Basic Law: the Judiciary, the conclusion is to be drawn that it is a matter of a constitutional basic right that cannot be limited except in those cases where there are grounds for detention, is far reaching and not to be accepted.   The question of the normative status of the right of appeal in our system is not a simple question and it has already been determined more than once in the case law that the right of appeal is established by law and is not included among the basic rights in our law, as determined by Justice Shamgar in HCJ 87/85 Argov and others v. the Commander of the IDF Forces for Judea and Samaria [38].

“The right of appeal is not counted among the basic rights that are recognized in our legal system which draw their life and existence from the accepted legal foundational concepts, which are an integral part of the law that applies here, as in the examples of freedom of expression or the freedom of occupation.” (Ibid. at pp. 361-362).

This court in fact did not recognize the right of appeal as a basic right, but the case law has emphasized the great importance of the institution of appeal “as an integral component of fair judging.” (See the High Court of Justice case, Argov above).  In light of the importance of the right of appeal it has been decided that an interpretation which grants the right of appeal is to be preferred over an interpretation which denies it.  (See HCJ 1520/94 Shalem v. The Labour Court and others, [39] at p. 233; MAppCr 2708/95 Spiegel and others v. State of Israel [40] at p. 232).  The Basic Law: Human Dignity and Freedom does not explicitly recognize the right of appeal.  The question whether it is possible to recognize a constitutional right of appeal among the protected rights in the Basic Law: Human Dignity and Freedom has not yet been considered in the case law.  Various possibilities can be conceived for anchoring the right in the Basic Law, whether as derivative of rights explicitly detailed in the Basic Law (in our matter – the right to liberty and perhaps dignity), and whether as stemming from the principle of proportionality in the limitation clause (meaning: defining the violation of liberty, property and more without first having an appeals process, is a violation “that exceeds that which is necessary.”  Compare to the words of Justice Or – as to the right to a fair trial – in LCA 5587/97 Israel Attorney General v. Ploni (John Doe) [41] at p. 861).  On the other hand, a view has been expressed which objects to the recognition of the right of appeal as a right that is derived from the Basic Law, although in discussion of the civil aspect, primarily for pragmatic reasons and taking into consideration the characteristics of our legal system (see S. Levin ‘Basic Law: Human Dignity and Freedom and Civil Legal Processes,’ [64] at pp. 462-463, and the discussion in his book supra at pp. 30-33).  It is interesting to note that in legal systems close to ours the right of appeal is not recognized as a constitutional right; it is not explicitly mentioned in the United States Constitution or the Canadian Charter of Rights and Freedoms, and to date has not been recognized as part of the constitutional right to due process.  (See; McKane v. Durston [52]; Jones v. Barnes [53]; W. R LaFave Criminal Procedure (2nd. ed., 1992) [68] 1136-1137).  Although voices calling for a re-examination of the law in this matter have been heard (See: in the United States – the minority opinion of Justice Brennan in the Jones case above; M. M. Arkin ‘Rethinking The Constitutional Right To a Criminal Appeal’ [72]; A.S Ellerson ‘The Right to Appeal and Appellate Procedural Reform’ [73]; in Canada see D. Gibson ‘The Crumbling Pyramid: Constitutional Appeal Rights in Canada’ [74]; R v. Farinacci [59].

As noted above, whether the right of appeal is recognized in our legal system as a basic right or not, there is no arguing its significant weight  in our system.  For the purpose of the matter which we are discussing – determining the discretion for stay of execution of a prison sentence in the framework of existing legislation – it is enough that we give thought to the rule of construction anchored in case law according to which an interpretation which gives the right of appeal is to be preferred over one that denies it.

16.  These are therefore the considerations and interests which are involved in exercising the court’s discretion in the stay of execution of a prison sentence, considerations which relate to both private individuals and the general public interest.  The court must exercise its discretion while conducting a proper balance among these considerations.  In the framework of conducting this balance special weight is to be given to the fear of unjustified violation of liberty.  The right to liberty has been recognized by this court as a basic right of the highest degree, that is to be respected and violation of it to be avoided to the fullest extent possible.  (See MApp 15/86 State of Israel v. Tzur [42] at p. 713 Justice Elon; The Judgment of Justice Heshin in MAppCr 537/95 Ganimat v. State of Israel [43] at 400-401).  Today the right to liberty is anchored in section 5 of the Basic Law: Human Dignity and Liberty.  The statutory provisions which we discussed above, which delineate the matter of stay of execution of a prison term, were in fact legislated before the legislation of the basic law and thus the provisions of the Basic Law cannot impinge on their validity (section 10 of the Basic Law: Human Dignity and Liberty).  However, the normative determination in the Basic Law, which defines the right to personal liberty as a constitutional right and which draws the balancing point between it and the various interests which society seeks to advance, influences the legal system overall; the significance of this influence, among other things is that the court’s interpretive work, as well as any exercise of discretion given to the court in the framework of existing legislation, will take place while taking into consideration the norm anchored in the Basic Law.  President Barak discussed this in the Genimat case above:

“What are the interpretive ramifications of the Basic Law: Human Dignity and Liberty for interpretation of old law?  It appears to me that one can point –without exhausting the scope of the influence – to two important ramifications of the Basic Law: first, in determining the statutory purpose at the core of an (old) statute, new and intensified weight is to be given to the basic rights established in the Basic Law.  Second, in exercising governmental discretion, which is anchored in old law, new and intensified weight is to be given to the constitutional character of the human rights anchored in the Basic Law.  These two ramifications are tied and interlaced with one another.  They are two sides of the following idea: with the legislation of the basic laws as to human rights new reciprocity was drawn between an individual and other individuals, and between the individual and the public.  A new balance has been created between the individual and the authorities.”  (Ibid. at p. 412)

17. As said above, the State claims that the defendant who has been convicted and sentenced to prison does not have a basic right to personal liberty.  Therefore, the State claims that the Basic Law: Human Dignity and Liberty has no relevance to the matter before us.  In any event the State claims that even if the right exists the law regarding stay of execution of a prison sentence meets the conditions of the limitation clause.  The general question whether the person who has been convicted and sentenced to prison has a ‘constitutional right’ to freedom, violation of which is subject to the tests of the limitation clause in the Basic Law, is a broad question.  Various approaches may be taken as to this question: thus for example it is possible to argue the absence of such a protected basic right, or to its being a right of lesser weight than other right which are anchored in the Basic Law (see A. Bendor, ‘Criminal Procedure and Law of Evidence: Development of Individual Human Rights in Procedural Criminal Law,’ [65] at p. 500; the words of Justice Dorner in HCJ 1715/97 Office of Investment Managers in Israel and others v. Ministry of Finance and others, [44] at p. 418 and on).  It is interesting to note that the Canadian case law that deals with the rights of prisoners, has recognized in certain cases the violation of the right to liberty of a convicted person serving a prison sentence, such as when there is a substantive change in the conditions of imprisonment or in the rules which apply to release on bail (see P.W. Hogg, Constitutional Law of Canada (4th. ed., 1997) [69] 1069; Cunningham v. Canada [60]; Miller v. The Queen [61] 112 – 118).

In our case there is no need to attempt and examine this question to its full extent and in the full range of situations in which it might arise.  This is because the question before us arises in a special situation and it is possible to limit the discussion to it alone.  In the matter before us, it appears to me that the State’s claim according to which determination of the question of the stay of execution of a prison sentence does not involve any violation of the right to liberty is not to be accepted.  The State is correct in its claim that when a person’s guilt has been determined by a court beyond a reasonable doubt, the assumption is that “there is a justification, which meets the standards of the limitation clause for executing the sentence imposed upon him.”  It is also true that the violation of the liberty of the convicted person is derivative of the judgment which has overturned the presumption of innocence, and from the sentence.  However, the complete distinction which the State wishes to establish in our case between denying liberty based on an authorized judgment and the determination of the date of commencement of the execution of the sentence, ignores the fact that the denial of liberty itself which is expressed in the immediate imprisonment, takes place at a stage in which the question of the accused’s  innocence has not been  finally determined.  A judicial judgment by which a person’ liberty is denied is also valid at the appeals phase as long as it has not been changed.  And yet, as long as a final decision has not been made there exists the potential to change the decision at the appeals phase and to reinstate the presumption of innocence.  In this situation, a decision whose significance is immediate imprisonment of a person, in accordance with the judgment which is the subject of the appeal, carries with it, beyond the immediate-physical violation of personal liberty, the possibility of serious violation of the liberty of an innocent person.  The severity of such violation may only be fully realized at a later stage, if, and to the extent that, the appeal of the convicted person is upheld and it is found that he served his sentence needlessly; but the existence of this possibility is the result of a decision as to the immediate execution of the prison sentence.  Against this background it can be said, that if we hold to the view that a person who has been convicted and sentenced to prison has no right to liberty then such a determination is fitting for an absolute conviction.  At the phase in which there is not yet a determination on the appeal of the convicted person, the right to liberty exists as a right but its intensity is weakened in light of the judicial determination which stands as long as it has not been overturned.

Indecision which relates to the question of violation of a constitutional right to liberty as a result of the immediate execution of a prison sentence prior to the determination of the appeal, has also been dealt with in the Canadian courts.  It is interesting to note that there, conflicting decisions have been handed down.  Thus, in the matter of R v. Farinacci [60] the prosecution’s claim – that was argued as part of a discussion as to the constitutionality of the statutory provision which deals with release on bail during the period of appeal –that the statutory provisions which deal with the release of a convicted person during the period of appeal do not violate the convicted person’s liberty, but rather the opposite is true – they advance it, and therefore are not subject to constitutional limitations, was dismissed.  In dismissing the claim the judge of the appeals court of Ontario established that:

“I cannot accept the respondent's contention that there can be no resort to s. 7 of the Charter in this case because s. 679(3) of the Criminal Code is not a provision which 'authorizes’ imprisonment but rather a provision which enhances liberty. There is, in my view, a sufficient residual liberty interest at stake in the post-conviction appellate process to engage s. 7 in some form. ... The respondent’s submission that s. 7 does not apply to bail pending appeal because, after conviction and sentence to a term of imprisonment, bail operates to enhance rather than to restrict liberty, proceeds from the same formalistic and narrow interpretation of constitutionally protected rights. In so far as the state purports to act to enhance life, liberty or security of the person, it incurs the responsibility to act in a non-arbitrary, non-discriminatory fashion and cannot deprive some persons of the benefits of the enhancement without complying with the principles of fundamental justice.” (Supra, at 40 - 41).

On the other hand, in another  decision in Canada the claim was dismissed according to which the statutory section which relates to release during the period of the appeal is not constitutional, while the claim of the prosecution there was upheld that the said statutory provision does not violate the right to liberty at all, as that was denied in the sentence, while the said statutory provision enables the freeing of the appellant:

“While the appellant's imprisonment clearly deprives him of his liberty, the authorization for this imprisonment does not derive from s. 679(3)(c). Rather, the appellant’s liberty is deprived by the sentence imposed by the trial judge. Nothing in s. 679(3)(c) adds to this deprivation. To the contrary, the provision affords a means of arranging the appellant's release. The appellant's liberty interests can only be enhanced by s. 679(3)(c), under which the operation of the sentence imposed by the trial judge may be temporarily suspended. There is thus no deprivation of any right in s. 679(3) (c). For this reason, I conclude that s. 7 does not apply to bail pending appeal.”

(R v. Branco) [62]).

In light of what has been said above it may be summarized and stated that when we come to establish the limits of appropriate judicial discretion for stay of execution of a prison term during the pendency of the appeal, we must do so while paying heed to the importance and the status of personal liberty, and the limits of permitted violation of it in accordance with the principles that were delineated in the Basic Law: Human Dignity and Liberty.  Justice Zamir discussed this in MAppCr 3590/95 Katrieli v. State of Israel [46], when he examined the guiding considerations in the matter of stay of execution of a prison sentence during the period of the appeal.

“Inter alia, weight is also to be given in this context to the Basic Law: Human Dignity and Liberty.  This basic right protects a person’s liberty (section 5) and although it is not sufficient to impinge on the validity of the Criminal Procedure Law, it is sufficient to influence via interpretation, the provisions of this statute as to release from detention or imprisonment.  In this vein, it is to be said that even when the law and the circumstances require denial of the liberty of a person in detention or prison, liberty is not to be denied to an extent that exceeds that which is necessary.”  (Emphasis added D.B.)

18.  In light of the various considerations and interests involved in the matter of stay of execution detailed above, how will the court exercise its discretion when coming to examine an application to stay execution of a prison sentence that has been imposed, until disposition of the appeal?  We will note first that the response of the applicant’s counsel to this question which rests primarily on the decision of Justice Ilan in the Hahami case above, is not acceptable to us.  This approach according to which the very filing of the appeal justifies stay of execution of the sentence, with the exception of cases where there is a fear that the convicted person will endanger public safety or will not appear to serve his term, is far reaching.  It does not properly distinguish between the phase of detention – when the presumption of innocence still holds, and the phase after conviction; it misses the target of the objective of giving effective deterrent expression to penal law punishment and may damage public confidence in the law enforcement system due to the release, as a matter of course, of those who have been convicted of criminal offenses.  It may also encourage filing meaningless appeals for the purpose of stay of the prison sentence.  In this matter we also cannot learn from the customary  law on this issue in the continental systems, where the criminal procedural process, the definition of the tasks of the court of appeals and the degree of its involvement in the determinations of the court of first instance is different from our system.  (See S. Levin’s book, ibid. [63] Damaska article [70] ibid.).

With that, the “accepted approach” for stay of execution of the prison sentence during the pendency of the appeal, in its traditional and limited meaning, no longer stands.  The appropriate approach to this issue must take into consideration and give weight to the totality of relevant considerations and interests which we have discussed which may apply to the various interests involved in the matter and the their degree of intensity under the circumstances and give them the appropriate relative weight.  According to this approach strict rules are not to be established for the exercise of discretion but rather guiding frameworks are to be delineated for its exercise.  The starting point must be that the court must utilize its discretion in a manner that takes into account the public interest in immediate enforcement of imprisonment, still prior to the hearing of the appeal, but must take care, however, that the realization of this interest does not harm the convicted person and their rights in a manner that goes beyond that which is necessary.  As detailed above, the directive of the legislature is that as a rule, a sentence of imprisonment is to be executed immediately after the sentence is handed down.  As we have explained, filing an appeal on a judgment does not in and of itself stay execution of the judgment, but rather the matter is given to the discretion of the court.  Nonetheless, when the court comes to decide on an application to stay  the date of commencement of the prison term on the basis of the authority given to it by law, the filing of an appeal constitutes an additional consideration that may impact the totality of considerations which are before the court, and the balance among them.  The burden is on the applicant for stay of execution of the prison sentence to convince the court that under the circumstances the public interest in immediate execution of the prison sentence  is overridden by the additional interests implicated in the case which we have discussed above.

The relevant considerations and interests will be examined by the court that is considering the applications, without purporting to present a closed list, we will discuss below the circumstances and primary considerations that the court must weigh when considering an application by the convicted person to stay execution of the prison sentence during the pendency of the appeal on the judgment:

(A)  The Severity of the Crime and the Circumstances of its Commission: the severity of the crime and the circumstances of its commission influence the intensity of the public interest in immediate enforcement of the prison sentence.  As a rule, the more severe the crime and the circumstances of its commission, the greater the public interest in immediate enforcement of the imprisonment, in its various aspects.   So too, as to the fear of the danger that the convicted person poses to the public, the severity of the crime of which he was convicted can in and of itself be an indication of his dangerousness.  As to the essence of the offenses which constitute on their own an indication of dangerousness, one can also learn from the laws of detention, according to which being accused of certain offenses creates a presumption as to the dangerousness of the accused (see: Arrests Law s. 21 (a)(1)(c)).  It is to be noted that in American law it has been established by law that a person who was convicted of committing certain serious offenses, such as violent offenses or offenses punishable by death or imprisonment beyond a certain time period, are not to be released on bail or the conditions for release are harsher than usual (see Bail Reform Act of 1984, s. 3143(b)(2); 8A Am.  Jur.  2nd. [76] 283) the severity of the crime and the circumstances of its commission also have ramifications on the intensity of the interest of protecting the effectiveness of criminal punishment and the actions of law enforcement authorities; the greater the severity of the offense and the circumstances of its commission, the greater the public interest in achieving effective deterrence from commission of similar crimes by others and the greater the fear of damage to the effectiveness of punishment and public confidence in enforcement systems if the convicted person is set free.  And note: as to this last matter I do not believe that the severity of the offense needs to be determined only according to the measure of the violence involved in its commission.  According to my approach, even the release of somebody convicted of committing offenses that do not involve severe violence and are not of the type of offenses listed in section 21 (a) (1) (c) of the Arrests Law, but which damage protected social interests of importance, including offenses of far-reaching fraud or corruption offenses that were committed through the abuse of public office, may under certain circumstances damage public confidence in law enforcement authorities and the effectiveness of criminal enforcement.  Such damage is a consideration among the considerations of the court in making a determination as to stay of imprisonment, within the examination of the background of the other facts of the case.

(B).  The Length of the Prison Term Imposed on the Convicted Person: The length of the prison term may affect the court's discretion in a number of ways.  First, when the prison term is brief, relative to the date in which the appeal is expected to be heard, there exists a fear that the convicted person will serve his sentence before his appeal is heard.  In such a case, it is appropriate to stay execution of the sentence in order to enable the convicted person to effectively realize the right of appeal which he has by law.  This approach is also acceptable within the traditional approach for staying execution of a sentence.  And it appears that it is necessitated by the accepted rules of construction as developed in the case law, according to which legislation is to be constructed in a manner that validates the right of appeal and enables its realization.  Second, the length of the prison term imposed on the convicted person may influence the assessment of the fear of flight of the convicted person from the law or attempts by him to obstruct justice; the concrete knowledge of the convicted person that if he fails in his appeal he is to expect a prolonged prison term, may increase the fear that he may flee from the law, this is so even if in the course of his trial in the trial court he appeared for his trial as required.  Third, the severity of the punishment that was imposed on the convicted person teaches us of the severity of the crime of which he was convicted, as generally punishment reflects the severity of the criminal act.

(C).  The Quality of the Appeal and the Chances of its Success: A central question to which we must give thought is what is the weight that is to be given to the fact of filing an appeal and to the chances of the appeal.  For the reasons we have already detailed, we have seen fit to reject the approach according to which the very filing of an appeal justifies stay of the execution of the sentence.  However, it appears that a perspective according to which it is appropriate to make a change from the present law, relates to the weight that is to be given to the quality of the claims raised in the appeal and the chances of its success in the framework of examining an application to stay execution of a sentence until the disposition of  the appeal.  The accepted approach in the case of stay of execution of a sentence leaves a particularly narrow opening for consideration of the appeal of the convicted, when it is not a matter of a short prison term and light offenses.  According to this approach, only conspicuous chances to win the appeal or salient distortion in the conviction justify stay of execution of the sentence during the pendency of the appeal.  This test establishes a high threshold which only in a few cases will the convicted person seeking to stay his imprisonment meet.  Such a test can injure in a disproportionate manner the freedom of the convicted person and the effective realization of the right of appeal; it creates an overly large gap between the level of examination at the preliminary phase of the decision on the application to stay execution of the sentence, and examination of the appeal itself, and increases the chances that serving the sentence will turn out retroactively to be unjust.  Under these circumstances, the means of immediate execution of a sentence may cause damage which is more than the utility contained within it.  It is not superfluous to note, that the test as to the chances of the appeal as it had been phrased in the case law, has in point of fact "been abandoned" in many decisions of this court, and even the State in its arguments before us does not phrase the appropriate rule according to its approach with such narrow language.

The consideration which relates to the chances of appeal is a relevant consideration to the question of stay of execution of the sentence during the period of appeal.  The more that the convicted person is able to show that his appeal is based on solid arguments the greater the justification to avoid immediate enforcement of the judgment before the appeal is heard on the merits.  However, it is not to be ignored that the consideration as to the chances of the appeal is a complex consideration, and assessing the chances of the appeal and its quality places before the judge difficulties which are not negligible.  From the character of the procedure which takes place during the application to stay execution of the sentence it can be derived that the judge does not have sufficient tools to assess in an informed manner the arguments raised in the appeal; the procedure takes place on the basis of a theoretical examination of these arguments and does not generally include studying the transcript and the totality of the evidence that was brought in the case.  Moreover, it is not desirable that a judge dealing with an application to stay the execution of a sentence, will make determinations that may have an influence on the discussion in the appeal itself.  Despite said difficulties, we are not dealing with an extraordinary assignment that judges are unaccustomed to.  Theoretical assessments are not new to the court, and it is accustomed to implementing considerations of this type at the phase of discussion of detention pending completion of the proceedings as well, when the presumption of innocence still stands.  A similar process of assessing the theoretical chances of an appeal, is also familiar to the court when dealing with applications to stay execution of a sentence in civil appeals.  We will note further that  in other legal systems which are similar to ours, weight is given to the chances of appeal and its quality in the framework of a determination as to stay of imprisonment until disposition of the appeal: thus, it is determined by federal law in the United States that the release of a convicted person on bail during the course of the pendency  of his appeal is conditioned on his proving that his appeal "raises a substantial question of law or fact likely to result in reversal..."  (Bail Reform Act of 1984, S. 3143 (b) (B)).  Courts are split as to the interpretation of this section, but it appears that the common approach is that the convicted person must show that the appeal raises a  question that is at least "balanced" in its chances ("close question").  (See T.W. Cushing “Raising a ‘Substantial Question’: The Key to Unlocking the Door Under the Bail Reform Act”  [75] 198). Indeed, the Canadian Law makes do with the requirement that the appeal  is not baseless or ‘frivolous,’ but in a number of decisions a statutory condition as to the lack of public interest in the imprisonment of the convicted person has been interpreted as including, inter alia, the assessment of the quality and strength of the appeal arguments. (See: R. v. Mcauley (1997) Ont. C.A Lexis 3[56]; R. v. Farinacci [59]; R v. Pabani [55]).

The theoretical assessment of the chances of appeal, in the framework of examining an application to stay execution, is not done by a "mechanical" probability test relative to the possible results of the appeal: such an examination is not possible in fact and it is not desirable for it to be undertaken by a single judge at such an early phase of the discussion.  The judge dealing with an application to stay execution of a sentence is to examine the quality of the arguments on appeal and their type, and assess their  inherent potential to influence the outcome of the appeal.  The theoretical strength of the arguments will be examined against the background of the accepted rules in our system relative to the exercise of review by the appeals court.  Thus, for example, claims by the applicants to change factual findings of the lower court which are based on its impression of witnesses, or reliable determinations of that court, will not generally be sufficient to base good theoretical chances for the appeal.  When the appeal is focused on legal questions, for which it can be determined on a theoretical level that they raise real difficulty, this will be sufficient, generally, to point to an appeal which justifies stay of execution of the sentence until these are clarified.  It is not unnecessary to note that it is not the outer legal dress which is given to the appeal argument which is determinative, but the substance of the argument and the degree of its relation and relevance to the concrete circumstances of said case, in a manner that is sufficient to influence the results of the appeal if the claim is upheld.  Thus,  it can be summarized that when it is a matter of serious arguments, that by their nature and character – if they are accepted – are sufficient to influence the results of the appeal this will contain a significant consideration for justifying stay of execution of the imprisonment until disposition of the appeal, all this taking into account the totality of circumstances of the matter.

(D.) The Criminal History of the Convicted Person and his Behavior During the Course of the Trial: as has already been noted above, these circumstances may point to the degree of dangerousness that is posed to the public from release of the convicted person and the existence of a fear of flight from the law.  This being the case, they may be relevant to applying the court's discretion when it examines whether to stay execution of a prison sentence until disposition of the appeal.  And note: this is not a matter of a consideration that stands on its own, and therefore it is not in every case that the convicted person without a criminal history or for whom it has been proven that he appeared properly during the course of his trial, will be sufficient to determine the matter of stay of execution of a prison sentence.  It may even be said that generally, at the phase after conviction, a clean record and careful adherence to the conditions of bail during the time of the trial proceedings, are not of themselves sufficient to tilt the scale to stay execution of the sentence, taking into account the impact of the conviction and sentence on the assessment of the dangerousness and on the fear of flight by the convicted person, and considerations of deterrence and effectiveness which we discussed above (see paragraph 13 supra).  But in the framework of the totality of the relevant considerations against the  examination of the severity of the offense, the degree of punishment that was imposed and the nature of the appeal, it is possible to also take into account data as to a clean criminal history of the convicted person and his good behavior during the course of the trial.

(E) The Personal Circumstances of the Convicted Person: in the framework of examining the application to stay execution of a prison sentence, it is possible to also examine, in appropriate cases, the personal circumstances of the convicted person.  A judicial decision, whose immediate significance is imprisonment of a person, whether it is a matter of the sentencing phase or whether it is the appeal phase, does not need to entirely ignore any claim as to personal circumstances of the person and as to the consequences he may expect as a result of his imprisonment.  Accordingly, personal circumstances constitute a consideration in the stay of execution of the prison sentence not only under the circumstances of the filing of an appeal.  Moreover, the existence of special personal circumstances, may also influence the weight of the public interest in immediate execution of the prison sentence.  The words of Justice Barak in MAppCr 37171/91 State of Israel v. Golden [46] which were said on the separate  topic of detention pending completion of the proceedings on the grounds of severity of the offense (prior to legislation of the Arrests Law), are appropriate here:

"The injury to the effectiveness of the criminal law and its enforcement, which is caused where someone who committed a severe offense, is "out and about" is tied, by its nature, to the theoretical circumstances of commission of the crime.  The efficiency of law enforcement will not be harmed, if someone who theoretically committed a serious offense is not detained because they are dying.  Everybody understands that the special circumstances of the case justify that even someone who theoretically committed a severe offense, will not be arrested under these circumstances.  Quite the opposite: arrest of the accused under these circumstances may create the impression that the state is taking revenge on the suspect and seeks him ill." (Ibid. at p.  814.  Emphasis added -- D.  B.)

It appears to me that the logic behind these words is appropriate, with the appropriate changes, also when we are talking of the difficult personal circumstances of the convicted person whose appeal is pending.  Indeed, taking into consideration the fact that we are now at the phase after conviction, it is possible that personal circumstances -- on their own -- will not generally have much weight in the decision of the court as to the stay of execution of a prison sentence, as the premise is that the court that imposed the sentence, also considered among the punitive considerations the existence of these circumstances.  However, there may be cases in which it appears on the face of it that this premise does not exist; thus for example, when the personal circumstances which are argued developed or changed significantly after the sentence was handed down.  So too, in other cases due to the special personal circumstances of the convicted person, such as his young age, his difficult mental condition or additional considerations for which the consequences of execution of the prison sentence may be particularly difficult.  In such cases, the personal circumstances will add additional weight to the decision to stay execution of the prison sentence until disposition of the appeal.  We will note that from examination of the decisions of this Court in applications to stay execution it appears that special personal circumstances indeed occasionally serve as a consideration among the considerations of the court when coming to determine applications to stay execution of prison sentences during the pendency of the appeal (see for example MAppCr 4092/94 Tioto v. State of Israel [47]; CrimA 6579/98 Friedan v. State of Israel [48]).

(F) Appeal as to Severity of the Punishment:  An additional consideration that is to be weighed in applications to stay execution of prison during the period of appeal, is whether the appeal is directed against the judgment and challenges the conviction itself, or whether it is a matter of an appeal that deals with the severity of the punishment that was imposed only?  As a rule, in appeals of the latter type, the tendency will be not to stay execution of the prison sentence.  When the appeal is on the severity of the punishment, the balance of the considerations and interests which is before the eyes of the court may change.  In such a case, the conviction itself -- which refutes the presumption of innocence -- is absolute, and  the same potential does not exist for it to be restored on appeal, which we discussed above.  Examining the quality of the appeal and its chances will be done while noting the rules as to the degree of intervention of the appeals court in punishment that was imposed by the trial court, and the question of the relationship between the time expected for hearing the appeal and the period of imprisonment that was imposed on the convicted person.  When on the face of it is not a matter of a punishment which deviates from the accepted punitive policy, and when the degree of punishment that is accepted in similar cases is greater than the amount of time expected for hearing the appeal, execution of the prison sentence will not be stayed except in exceptional circumstances and the burden for showing this is so will be on the applicant.  (Compare: CrimA 3602/99 Ploni (John Doe) v. State of Israel [49], Justice Ilan; 3976/99 Ephraimov v. State of Israel [50], Justice Strasberg-Cohen).

19.  As said, the list of circumstances detailed above does not purport to be exhaustive.  It exemplifies the type of circumstances and considerations that have in them to influence the application of discretion by the court when it comes to determine an application to stay execution of a prison sentence during the pendency of the appeal; these considerations relate to the public interest in immediate enforcement of the judgment on the one hand, and preservation of the rights of the convicted person on the other hand.  The court must determine each and every case according to its facts, while balancing between the different interests which we have discussed above relating to the topic.  It is important to emphasize that the considerations which we discussed are not static and do not stand on their own, but influence each other.  The work of balancing between them will be done after assessing the strength of the various interests and the weight that is to be given to each of them under the circumstances of the case.  Thus, for example, the more the convicted person can show that his theoretical chances of success on appeal are good and well founded, the lesser the weight of the public interest in immediate enforcement of imprisonment, and thus, depending on the matter, will be narrowed to those considerations of danger to the public or flight from the law, which also apply in the law of detention pending completion of the proceedings.  So too, the more it is a matter of conviction of a more severe criminal offense, the circumstances of whose commission are more severe, so too will the burden increase on the convicted person that seeks to stay execution of his prison term to show that there exist circumstances which justify stay of execution of the prison term despite the public interest in its immediate enforcement.

Conclusion

20.  In conclusion, the summary of our position as to stay of execution of a prison sentence during the pendency of appeal, is this:

A.  The filing of an appeal is not sufficient on its own to stay execution of a prison sentence.  Stay of execution of a prison sentence during the pendency of the appeal is a matter for the discretion of the court.

B.  The approach which was accepted in the case law of this Court, according to which stay of execution of a prison sentence during the period of appeal is a matter of an exception which applies only in extraordinary cases and under the existence of special circumstances, no longer holds.

C.  In applying its discretion as to stay of execution of a prison sentence during the period of appeal, the court will consider the public interest in immediate enforcement of the judgment, and considerations which relate to the convicted individual and his rights in light of the existence of a pending appeal proceeding; the court will make sure that protection of the public interest will not harm the convicted person and his rights in a manner that is not proportional.  The type of relevant circumstances and considerations which the court will take into account when applying said discretion, were detailed in our decision.

D.  The burden on the applicant for stay of execution of the prison sentence is to convince the court that under the circumstances of the case, the public interest in immediate execution of the prison sentence retreats in the face of the additional interests involved in the matter.

The approach we propose is not new to the case law of this Court; and it is integrated with a broadening trend taking shape in previous decisions of the court, such as for example in the judgments of Justice Strasberg-Cohen in the Mercado, Kochanski, and Sharabi cases above.  This approach operates to make the accepted approach for stay of execution of a prison term during  the pendency of the appeal more flexible in a manner that will reflect the totality of considerations and interests involved in the matter, while giving appropriate weight to the concern for violation of the rights of the convicted person.

From the General to the Specific

21.  Having drawn the basic framework, we turn to the application of the guidelines in exercising our discretion in the circumstances of the applicant’s case.  It should first be said that the case before us is not of the easier cases for determination, both because of the type of offense, and because of the reasons for the appeal and because of the "borderline nature" of the period of imprisonment.  Moreover, the date of determination of the appeal arrived after the applicant received, in fact, a significant stay of execution during the time that was required to formulate our approach to the fundamental issue.  However, the correct question is – if the matter of the applicant had come to us a priori -- whether based on the guidelines that we have delineated we would have upheld the application to stay execution of the prison sentence until the disposition of the appeal.  I have come to the conclusion  that were I to consider the application and make a decision as to it a priori, according to the criteria we proposed, while balancing among the relevant considerations, I would have tended in the direction of immediate execution of the prison sentence.

The offenses with which the appellant was convicted -- rape and sodomy -- are severe offenses, and seemingly by their nature are the type of offense which point to the dangerousness of the person convicted of committing them.  Generally we will rarely stay execution of the sentence for convictions of offenses of this type, for reasons of public interest, including the enforcement interest.  Moreover, the period of imprisonment that was imposed on the applicant -- 3 years of imprisonment in fact-- is not considered among the short time frames for which it is appropriate to give a stay of execution only to enable hearing of the appeal; at most, it would have been justified to move the hearing of the appeal forward, in consideration of the length of the prison term.  When we come to weigh the chances of the appeal we must give thought to the fact that the notice of appeal is directed primarily against findings of fact and findings of credibility, and does not raise serious legal questions.  Generally such an appeal, on its face and lacking reasons that would show otherwise, does not have a large theoretical chance, even if of course we cannot rule out the possibility that the claims or some of them will eventually be accepted.  To all this is to be added, that apparently it arises from the sentence that the court took into account the personal circumstances of the applicant, and the normative background, and gave them expression in the sentence that was handed down.  There are not in the personal circumstances of the applicant extraordinary considerations of the type that justify stay of execution of the prison sentence in order to prevent special harm that is expected from the fact of imprisonment.  Therefore, if the grounds for the application had been before us under regular circumstances they would not be sufficient to convince us to stay execution of the sentence.

However, when we come to determine the matter of the applicant today, we must also consider among our considerations the fact that the applicant has been free on bail for a long period of time since the sentence was handed down and his appeal may be heard soon.  For this reason, and in consideration of the date that has been set for hearing the appeal, it is not appropriate, at the present phase in the proceedings, to order the immediate imprisonment of the applicant. 

 

President A. Barak

I agree.

 

Vice-President S. Levin

I agree

 

Justice T. Or

I agree.

 

Justice E. Mazza

I agree.

 

Justice M. Cheshin

I agree.

 

Justice T. Strasberg-Cohen

I agree.

 

Justice D. Dorner

I agree.

 

Justice Y. Kedmi

1. Stay of Execution of a Prison Sentence

My colleague, Justice Beinisch is worthy of accolades for the effort invested in preparing her thorough and comprehensive opinion.  Strength to him.

I join the result that my colleague has reached: and the framework of considerations proposed by her as a basis for consideration of an application to stay execution of the prison term against the background of filing an appeal is acceptable to me.  However, in light of the language of the summary presented in paragraph 20.b. to the judgment which states: “stay of execution of a prison term during the period of appeal,” is no longer “an exception which applies only in extraordinary cases and under the existence of special circumstances” – I find it necessary to add a qualifying comment.

The summarizing language in said paragraph may leave the impression, that stay of execution of a prison term under said circumstances is no longer an ‘exception’ to the rule which requires immediate execution of such a judgment.  In my approach, from the substantive-fundamental approach, this is not the stance which is necessitated by the clarification undertaken by my colleague in this matter in her judgment; and does not sit well with imposing the burden of persuasion – as to existence of circumstances which justify stay of execution on the applicant, as necessitated by the language of paragraph 20.d. of the summary.

Reading the judgment teaches me at least, that from the fundamental perspective the law and the case law in the following two areas have stayed as they are.  One – and this is the primary one – that based on the written law, the rule is that a prison term is to be executed immediately upon imposition, unless there exist grounds which justify staying its execution; when the individual seeking the stay, bears the burden of persuasion of the court as to the existence of the grounds.  And the second – whose practical significance does not fall below that of its predecessor – that the central consideration for justifying deviation from the said rule, is contained in the chances of the appeal’s success.  I have also learned from the judgment: that the specific secondary considerations which are grounded in the special circumstances of a said case – that were developed in this context in the case law, have also been left as is; and there is no basis for the argument heard lately in courts according to which: the provisions of the Basic Law: Human Dignity and Liberty, undermine the basis from the existing law in the matter of stay of execution and necessitate establishing an innovative approach, at the basis of which stands the constitutional right to personal liberty.

The change presented in the judgment, is, in my view, a change in the policy of the application of the existing rule; as opposed to a conceptual change which establishes a new rule.  To this character of the change – with which, as said above I agree – I found explicit expression in the words of my colleague according to which: the change “relates to the weight that is to be given to the quality of the arguments raised in the appeal and the chances of its success”; in a manner that “The more that the convicted person is able to show that his appeal is based on solid arguments the greater the justification to avoid immediate enforcement of the judgment.”  Therefore: we do not have a fundamental revolution here, rather – clarification of the proper application of the rule already existing for us according to which: from now on the threshold of requirements for stay of execution, is no longer as high as was to be understood from decisions given in the past in this matter, but lower and more flexible.

In summary, in my view – and in this I differ from the conclusion – there are two guidelines necessitated by the judgment: first – there is no room for the approach which says that “only blatant chances for success on appeal or a manifest distortion on the face of the conviction, justify stay of execution of the prison sentence during the pendency of the appeal”; and second – the judge considering the application must examine “the quality of the arguments on appeal and their type to assess the potential entailed in them to influence the results of the appeal.”

2. Joining a Party to the Proceeding as a “Friend of the Court”

Granting the Public Defender’s application to join the discussion as a “friend of the court” in the case before us, is not in line with my view in the matter.  Here are a number of comments which reflect, fundamentally, my view on the subject.

The inherent authority of the court to join a “friend” to the discussion is an exception to the character of the judicial proceeding which is customary here.  It is proper therefore to take care to make use of this authority in the rarest of cases, when the circumstances justify not only deviation from the rule, but necessitate it.  The fact that the “friend”  has the power to offer the court “assistance” in the solution of the legal problem before us, does not constitute, on its own, a sufficient basis for inviting a “friend” to join the discussion.  For it we say this, the “friend” will become the “legal helper “of the court; and in my view this is not the purpose of the existence of this institution.  In our system, the court copes with “legal issues” with the help of the “natural” parties who appear before it; when at the top of their priorities – and this is particularly so of defense attorneys – stand the accused and not consideration of the analytical-fundamental legal issue, which relates to the totality of accused or others involved in the criminal act which is the subject of the discussion.  The court does not need offers of professional legal help from the broad public; and particularly not from those who have an interest in promoting one solution or another to a problem that is to be determined in the discussion taking place before it.

As a rule, therefore, it is appropriate, in my view, to limit the invitation of a “friend,” to circumstances of “procedural necessity,” meaning: to circumstances in which the involvement of the “friend” is necessary to ensure the existence of a proper and fair discussion in the matter of the accused standing trial; as opposed to circumstances in which “friends” seek to present their own positions in the matter under discussion.  The friend is indeed the friend of the Court; however, from a practical standpoint, he is the friend of the accused who is in distress. In the case before us, the application of the Public Defender to be joined to the discussion as a “friend” of the court did not come against the background of coming to the aid of a defendant in distress in order to ensure a fair trial in his matter; but rather, against the background of its desire to advance its fundamental position in the legal issue that has been placed by the parties before the court.  In fact, the Public Defender seeks to join itself to the discussion as the “friend of all accused,” all of them; and this so that it will have the opportunity to convince the court of the justness of a judicial policy which appears to it to be consistent with “rights of the accused.”  This is not the end  to which the Public Defender was established; and in any event, this is not the purpose of the existence of the institution of the Court.

In summary: in my view, the institution of the Public Defender was established to ensure legal representation for the accused, when circumstances exist as established in the law; and is not assigned with the advancement of the interests of all defendants as such.  In any event, even if it was assigned the task of protecting the rights of accused in general, this is not sufficient to grant it the status of “friend of the court”; and to prefer it over any other organization that sets as its goal to advance the interests of others “involved” in the criminal proceeding, such as: the entities handling the protection of rights of the victims of the offenses.  It is appropriate that advancement of the rights of all accused be done elsewhere and not in the framework of the consideration of the matter of a given accused person.

Therefore, the application to stay execution of the prison sentence is granted as per the judgment of the Hon. Justice Beinisch.

 

4 Sivan 5760

June 7, 2000

HCJ 680/88

 

1. Meir Schnitzer

2. Aluf Ben, a Journalist

3. Itonut Mekomit Ltd.

v.

1. The Chief Military Censor, Mr. Yitzchak Shani

2. The Minister of Defense

 

 

 

 

The Supreme Court sitting as the High Court of Justice

[January 10, 1989]

Before Barak J., Maltz J., and Wallenstein J.

 

 

 

 

Editor's Synopsis:

                The Petitioners sought to publish a newspaper article that was critical of the outgoing head of the Mossad, the Agency for Intelligence and Special Duties, on the occasion of the forthcoming appointment of a new Mossad head. The article did not mention his name or otherwise identify him. After several versions of the article were submitted for approval to the first Respondent, the Chief Military Censor, and after the Petitioners agreed not to publish certain parts of the article, the Censor forbade the publication of two matters: criticism of the head of the Mossad's effectiveness, on the ground that such criticism would affect adversely the Mossad's ability to function in general in the field of security policy; and disclosure of the impending change in leadership of the Mossad, on the ground that this could focus attention on the head of the Mossad and endanger his safety. The Chief Military Censor purported to act pursuant to authority vested in him by the Defence (Emergency) Regulations, 1945. The Petitioners sought the issuance of a rule nisi, directing the Respondents to show cause why they should not be restrained from interfering with the publication of the article, including the forbidden matter. The High Court considered the substantive issues raised by the case as if an order nisi had been granted and issued an order permitting publication of the article in the above respects, holding:

           

1.   Although the Defence Regulations were promulgated by the Mandatory regime, they are now part of Israeli legislation and should be interpreted in harmony with Israeli democratic values. Such values give prominence to freedom of expression and freedom of the press.

 

2.   The scope of judicial review of "subjective discretion" does not differ from the review of any other discretion. All administrative discretion must be exercised lawfully, that is: within the authority granted by the law granting discretion, for the purpose envisioned by the grant, reasonably, in good faith, on the basis of evidence reasonably evaluated, after giving due consideration of and balancing the other values involved.

 

3.   The values to be balanced in this matter are state security and freedom of the press. There can be no effective exercise of freedom of expression without security. But free expression and public debate contribute to state security as part of the system of checks and balances.

 

4.      Free expression may not be curtailed unless there is a near certainty that the publication will cause substantial and grave harm to security. This is especially so in the case of a prior restraint on the publication.

 

5.      The Military Censor did not meet the burden of proof cast upon him to establish that there exists a near certainty of harm to security if the article will be published.

 

Supreme Court Cases Cited:

[1] H.C. 5/48 Leon v. The Acting Supervisor of the Tel Aviv Municipal Area, 1 P.D. 58.

[2] H.C. 222/68 Nationalist Groups, A Registered Association v. The Minister of the Police, 24 (2) P.D. 141.

[3] H.C. 107/52 Assad v. The Chief of Staff of the Armed Forces, 6 P.D. 339.

[4] F.H. 29/84 Kossoi v. Feuchtwanger Bank, 38 (4) P.D. 505.

[5] Cr. A. 667/83 Borochov v. Yeffet, 39 (3) P.D. 205.

[6] H.C. 953/87 Poraz v. The Mayor of Tel Aviv-Jaffa, 42 (2) P.D. 309.

[7] H.C. 73/53 "Kol Ha-Am" Company Ltd. v. The Minister of the Interior, 7 P.D. 871.

[8] H.C. 58/68 Shalit v. The Minister of the Interiorr, 23 (2) P.D. 477.

[9] C.A. 165/82 Kibbutz Hazor v. Revenue Agent Rehovot, 39 (2) P.D. 70.

[10] E1. A. 2/84 Neiman v. The Chairman of the Elections Committee for the Eleventh Knesset, 39 (2) P.D. 225 (also reported in 8 Selected Judgments xxx).

[11] C.A. 65/57 HaEtsni v. Ben Gurion, 11 P.D. 403.

[12] C.A. 81/55 Kochavi v. Baker, 11 P.D. 225.

[13] Cr. A. 108/66 "Dan" Cooperative for Public Transportation Ltd. v. The Attorney General, 20 (4) P.D. 253.

[14]H.C. 262/62 Peretz. v. The Kfar shmaryahu Local Council, 16 P.D. 2101.

[15] H.C. 301/63 Shitreet v. The Chief  Rabbi of Israel, 18 P.D. 598.

[16] H.C. 243/62 Israel Movie Studios Ltd. v. Greg, 16 P.D. 2407.

[17]H.C. 39/64 EI-Ard Company Ltd. v. The Supervisor of the Northern Region, Nazareth, 18 P.D. 340.

[18] H.C. 153/83 Levy v. The Police Commander of the Southern District, 38 (2) P.D. 393.

[19] H.C. 14/86 Laor v. The Council for Review of Movies and Plays, 41 (1) P.D. 421.

[20] H.C. 644/81 Omer International Inc. New York v. The Minister of the Interior, 36 (1) P.D. 227.

[21] H.C. 355/79 Katalan v. The Prisons Service, 34 (3) P.D. 294.

[22] H.C. 234/84 "Chadashot" Ltd. v. The Minister of Defense, 38 (2)

P.D. 477.

[23] Cr. A. 126/62 Dissenchik v. The Attorney General, 17 P.D. 169.

[24] Cr. A. 696/80 Azulai v. The State of Israel, 37 (2) P.D. 565.

[25] H.C. 253/64 Jerris v. The Supervisor of the Haifa District, 18 (4)

P.D. 673.

[26] H.C. 448/85 Daher v. The Minister of the Interior, 40 (2) P.D. 701.

[27] H.C. 399/85 Kahane v. The Managing Board of the Broadcasting Authority, 41 (3) P.D. 255.

[28] Cr. A. 255/68 The State of Israel. v. Ben Moshe, 22 (2) P.D. 427.

[29] H.C. 372/84 Klopper-Naveh v. The Minister of Education and Culture, 38 (3) P.D. 233.

[30] C.A. 723/74 "Ha'aretz" Newspaper Publication Ltd. v. The Israel Electric Company Ltd., 31 (2) P.D. 281.

[31] H.C. 1/81 Shiran v. The Broadcasting Authority, 35 (3) P.D.365. [32] H.C. 243/82 Zichroni v. The Managing Board of the Broadcasting Authority, 37 (1) P.D. 757.

[33] H.C. 554/81 Bransa v. The Military Commander of the Central District, 36 (4) P.D. 247.

[34] H.C. 292/83 Temple Mount Loyalists, A Company v. The Police Commander of the Jerusalem Region, 38 (2) P.D. 449.

[35] S.S.A. 5/86 Spiro v. State Services Commissioner, 40 (4) P.D. 227.

[36] H.C. 259/84 Israeli Institute for the Selected Business and Product v. The Broadcasting Authority, 38 (2) P.D. 673.

[37] H.C. 562/86 Al Hatib v. The Ministry of the Interior Supervisor of the Jerusalem District, 40 (3) P.D. 657.

[38] Cr. A. 495/69 Omer v. The State of Israel, 24 (1) P. D. 408.

[39] F.H. 16/61 The Registrar of Companies v. Cardush, 16 P.D.1209.

[40] H.C. 241/60 Cardush v.The Registrar of Companies, 15 P.D. 1151.

[41] H.C. 742/84 Kahane v. The Speaker of the Knesset, 39 (4) P.D. 85.

[42] H.C. 389/80 Yellow Pages Ltd. v. The Broadcasting Authority, 35 (l) P.D. 421.

[43] H.C. 910/86 Ressler v. The Minister of Defense, 42 (2) P.D. 441.

[44] H.C. 442/71 Lanski, v. The Minister of the Interior, 26 (2) P.D. 337.

[45] H.C. 361/82 Hamry v. The Military Commander of the Judea and Samaria Area, 36 (3) P.D. 439.

[46] H.C. 56/76 Berman v. The Commissioner of Police, 31 (2) P.D. 587.

[47] H.C. 159/84 Shahin v. The Commander of the I.D.F. Forces in the Gaza Strip Area, 39 (1) P.D. 309.

[48] H.C. 46/50 Alayubi v. The Minister of Defense, 4 P.D. 222.

[49] H.C. 731/86 Micro Daf v. The Israel Electric Company Ltd., 41 (2) P.D. 449.

[50] H.C. 393/82 G'amaut Aschan Alm'almun Alta'unia Almahaduda Almasaulia, A Cooperative Association Legally Registered in the Command Headquarters for the Judea and Samaria Area v. The Commander of the I.D.F. Forces in the Judea and Samaria Area, 37 (4) P.D. 785.

[51] H.C. 329/81 Nof v; The Attorney General, 37 (4) P.D. 326.

[52] H.C. 292/86 HaEtsni v. The State of Israel, 42 (4) P.D. 406.

[53] H.C. 541/83 Asli v. The Supervisor of the Jerusalem District, 37 (4) P.D. 837.

[54] H.C. 2/79 Al Assad v. The Minister of the Interior, 34 (1) P.D. 505.

[55] H.C. 488/83 Bransy v. The Director of the Department for Visas and Citizenship, 37 (3) P.D. 722.

[56] H.C. 306/81 Sharon v. The Knesset Committee, 35 (4) P.D. 118.

[57] H.C. 731/85 The "Kach" Part v. The Speaker of the Knesset, 39 (3) P.D. 141.

 

American Cases Cited:

[58] United States v. Progressive, Inc., 467 F. Supp. 990 (1973).

[59] New York Times Co. v.. United States, 403 U.S. 713 (1971).

[60] Near v. Minnesota, 283 U.S. 697 (1931).

 

 English Cases Cited:

[61] Liversidge v. Anderson [1941] 3 A11 E.R. 338 (H.L.).

[62] Nakkuda v. M.F. De S. Jayaratne [1951] A.C. 66 (P.C.).

[63] Ridge v. Baldwin [1964] A.C. 40.

[64] Reg. v. I.R.C. Ex p. Rossminister Ltd. [1980] A.C. 952.

 

 

JUDGMENT

 

            Barak, J.:

           

            What is the authority of the "Military Censor", acting pursuant to the Defence (Emergency) Regulations, 1945, to bar publication of a newspaper article that criticizes the functioning of the head of the Agency for Intelligence and Special Duties (the Mossad), while noting that the occasion for such criticism is his impending replacement - that is the question which is at the center of the petition before us.

           

            The Petition

           

            1. A daily newspaper called "Ha-Ir" is published in Tel Aviv by the third Petitioner. Mr. Shnitzer, the first Petitioner, is its editor. Aluf Ben (the second Petitioner) is a journalist employed by this newspaper. He prepared an article about the forthcoming changes in the leadership of the Mossad. The article was sent to the Chief Military Censor (the first Respondent) and was disqualified by him (on 3.8.88). The reason given for prohibiting publication of the article was that its publication would prejudice the security of the State. Several days later (11.8.88) the editor submitted to the Censor a different version of the article. This new version was also disqualified on the same grounds of state security. The Censor asked the newspaper to resubmit the article, and this was done (on 14.8.88), this time containing references to persons by name. This version was disapproved for publication (on 15.8.88). Several days later (on 23.8.88), the article was submitted to the Censor in its final form. The Censor approved its publication, save for 32 paragraphs whose publication was prohibited. The petition was brought against this decision.

           

            2. The selections whose publication was prohibited deal with three

  

          matters: First, a description of the head of the Mossad. In the Censor's opinion, these portions could lead to his identification and thus prejudice his personal safety. Second, adverse criticism of the functioning of the head of the Mossad, including on grounds of inefficiency, which did not disclose events which had not previously been revealed. In the Censor's opinion, this criticism of the head of the Mossad would injure the Mossad's ability to function at all levels. In particular, it could harm state security insofar as contacts with parallel agencies in other countries are concerned, as well as with local field operatives. Third, publication of the expected change in the head of the Mossad. In the Censor's opinion, this would focus the attention of those interested in such matters on his person, his movements and his activities, and thereby lead to his identification, particularly abroad, which could cause substantial risk to his safety.

 

          3. Mr. Lieblich, the Petitioners' representative, agreed that all references to the identity of the head of the Mossad should be deleted, and this is no longer an issue before us. On the other hand, it is his opinion that the two other matters - criticism of the functioning of the head of the Mossad and the date of his replacement - should be published and were unlawfully disqualified. Mr. Lieblich emphasized the importance of freedom of expression and the public's right to be informed in a democratic regime. In his opinion, only when there exists a near certainty of prejudice to the security of the State may the Military Censor prohibit publication, and even then he must act reasonably. According to Mr. Lieblich, the publication of criticism of the head of the Mossad and the date of his replacement do not create a near certainty that state security will be prejudiced and the ban on their publication was not reasonable. In his arguments before us Mr. Lieblich stressed the public importance of the position of head of the Mossad - particularly after the Yom Kippur War - and the vital necessity that the most suitable man be appointed to this task. It was, therefore, (according to him) the Petitioners' duty to admonish and arouse those responsible so that the appointment of a new head of the Mossad would be properly weighed, and that it would not be influenced by politics, or by partisan conflicts or by an attempt to compromise by -appointing a mediocre person. Mr. Lieblich emphasized before us that the Petitioners did not mention any names in the article and did not recommend any candidates. Their intention is only to stress the duty to appoint suitable persons so that previous instances of negligence would not be repeated. Mr. Lieblich agrees that the operations of the intelligence services should be secret and protected against publication, but there is no justification, in his opinion, to prohibit publication of criticism of the head of the Mossad. Such public criticism could even result in extra vigilance on his part. Finally, Mr. Lieblich emphasized that it is permissible to publish information concerning the expected appointment of the head of the General Security Services, and there are no grounds to distinguish between him and the head of the Mossad. He also drew attention to an article published in September 1987, which the first respondent had allowed, in which reference was made to the growing agitation in Mossad circles over the appointment of the next head of the Mossad. Mr. Lieblich also pointed out that the Military Censor does not ban publications criticizing the head of the General Security Services, the head of Military Intelligence and the Chief of Staff. In his opinion, there should be one criterion, insofar as public criticism is concerned, for all heads of security organizations.

 

            4. In her reply, Mrs. Arad, who appeared for the respondents, noted that the Military Censor agrees that the right of expression and freedom of expression are basic principles of our system of law which should be honored. This premise has always guided his considerations. Furthermore, the Military Censor accepts the fact that the proper test to be applied in reviewing his powers is that of the near certainty that the publication would prejudice the security of the State. He also agrees that he must act reasonably. However, Mrs. Arad argued, the publication of criticism of the head of the Mossad and of his impending replacement create a near certainty that the security of the State will be harmed, and the prohibition of such publication was reasonable. We have already noted the Military Censor's reasons for his decision to forbid the publication. Mrs. Arad noted that the Military Censor did not prohibit publication of those parts of the article which criticized the Mossad and its functioning in general. He only censored criticism of the outgoing head of the Mossad. The reason for this was, as already noted, that, as long as the head of the Mossad remains in office, any references to the performance of his functions could prejudice the security of the State. She argued that there is a difference between criticism of the head of the Mossad and criticism of the heads of other security services, in light of the exceptional nature of the Mossad's work. Thus, for example, according to present practice, announcement by the Government of the appointment of a new head of the Mossad is not accompanied by announcement of his name, while publication of his retirement is permitted together with publication of his identity for the first time. This practice is not followed in the case of the heads of other security services. Mrs. Arad added that there is public control over the appointment of the head of the Mossad, as he is appointed by the Prime Minister and functions under the control of the Prime Minister, the Government, the Foreign Affairs and Security Committee of the Knesset, the Knesset and the State Comptroller.

 

            5. During the course of the proceedings, the "battle lines" between the parties were narrowed. The Censor withdrew his ban with respect to eight of the thirty-two paragraphs which he had previously censored; and the Petitioners agreed, of their own accord, to remove six of the remaining paragraphs. The dispute concerns, then, the remaining eighteen paragraphs, which concentrate on criticism of the functioning of the outgoing head of the Mossad and on his forthcoming replacement. The question before us is, therefore, whether the Censor's approach in these matters is lawful.

           

            The Normative Framework

           

            6. The "military censorship" exists by virtue of the Defence (Emergency) Regulations - henceforth the Defence Regulations. Chapter 8 of these Regulations deals with censorship. Regulation 87 (1) provides that:

           

          "The Censor may by order prohibit generally or specially the publishing of matters the publishing of which, in his opinion, would be, or be likely to be or become, prejudicial to the defence of Palestine or to the public safety or to public order."

           

            The Censor is also empowered to demand that material be submitted for censorship before publication (Regulation 97). Publication of material whose publication was banned is an offense against the Defence Regulations. The Censor was appointed by the High Commissioner whose powers have now been assigned to the Minister of Defence. The Censor is an Army officer, and censorship pursuant to Chapter 8 of the Defence Regulations is performed within the framework of the Army. Hence the term "Military Censor". It should be noted that in actual fact the Military Censor's powers are not exercised with respect to those newspapers which are parties to the agreement between the Editors' Committee and the Minister of Defence (for particulars of that agreement, see Z. Chafets, "Press and Government in Israel", 14 Israel Yearbook on Human Rights (1984) 134; P. Lahav, "Press Law in Modem Democracies" (New York 1985) 265, 275). The newspaper "Ha-Ir" is not a member of the Editors' Committee and is not a party to the agreement with the Military Censor. The legality of the Censor's actions will therefore be examined directly on the basis of the Defence Regulations without any reference to the agreement with the Editors' Committee.

 

            7. In the context of the petition before us, the provisions of the Defence Regulations which deal with military censorship give rise to four questions: first, in what circumstances may the Military Censor prohibit publications in newspapers on the grounds of prejudice to the defense of the State or to the public safety or order; second, what are the limitations imposed on the Military Censor's exercise of his discretion; third, what is the scope of judicial review of the Military Censor's decisions; and fourth, does the Military Censor's decision in this case satisfy the appropriate tests and is there room for our intervention in his decision. I shall deal with these questions one by one.

           

            The first question: Circumstances in which publication may be prohibited

           

            8. The Defence Regulations were enacted by the High Commissioner pursuant to the powers vested in him by Article 6 of the Palestine Order-in-Council (Defence), of 1937. These Regulations are, therefore, part of the Mandatory legislation. However, pursuant to section 11 of the Law and Administration Ordinance, 1948, they became part of Israeli law. This change from Mandatory law to Israeli law was not a purely technical matter. A change in the framework brings in its wake, by the nature of things, a change in content. Section 11 of the Law and Administration Ordinance provides that the law which existed in Palestine on May 15, 1948, remains in force subject to "such modifications as may result from the establishment of the State and its authorities". Initially, this court held that such modifications were of a technical nature only (H.C. 5/48 [1], at p. 69). Later, it was held that such "modifications" are not of a technical nature only but also substantive (H.C. 222/68 [2]). Justice Silberg held, at pages 157-158 of the latter judgment, with reference to the technical approach of H.C. 5/48:

 

"With all due respect to the learned Justices, I am not convinced that the formal interpretation which they gave to these words is correct. I think there would be something of a "capitis diminutio" (diminution in value) of the great historical event - the creation of a Jewish State in Eretz Israel, if we were to say that the legislative change, after 2000 years of exile and after the establishment of our independent State, was for us, for example, merely that change in borders, in 1948, because of which the Allenby Bridge had to be removed from the list of 'lawful' points of entry into the country, published in 1943.... I admit without any shame that I am unable to grasp this idea. My heart is with those 'maximalists' who regard our national independence as the longed-for redemption, the third Temple, the rehabilitation of the nation's existence. And if this is the nature of our independence then it is possible, in principle, to examine the heartbeat of every Mandatory law in order to discover whether it complies with the spirit imbuing the laws of our independent and free state."

 

            A colonial regime was replaced by political independence. Autocratic rule was replaced by democracy, which is the government of the people, based on representation, operating according to the will of the majority, but upholding the rights of the individual. This change, in the natural course of events, brings in its wake a new approach to law and to judicature. The results of this change vary with the circumstances. Sometimes, the change is purely technical (see H.C. 107/52 [3]). On other occasions it is of considerable substance, resulting in the exclusion of Mandatory legislation from Israeli law (see H.C. 228/68 [2]). This would happen only on rare occasions, and has become even rarer with the passage of time (see H.C. 228/68 [2], at p. 209).

           

            9. One of the changes that may result from the establishment of the State and its authorities is the manner of interpreting Mandatory legislation.

           

"... [T]he last part of section 11 emphasizes principally the fact that political independence also brings in its wake changes in the scope of law and its interpretation. Wherever it was necessary, therefore, the basis for independent interpretation of the law and the independent crystallization of rules was created by statute." (President Shamgar in F.H. 29/84 [4], at p. 511.)

 

            This change in the interpretation of Mandatory law is twofold. First, Mandatory legislation is not interpreted according to the rules of interpretation current during Mandatory times, but according to the rules of interpretation followed in Israel. Second, legislation is interpreted against the background of the basic principles of the legal system (see Cr. A. 667/83 [5] and H.C. 953/87 [6]). Mandatory legislation will not be interpreted against the background of the basic principles of the system of law that prevailed during the Mandate, but against the background of the basic principles of the system of law that operates in Israel. Justice Agranat noted this point in H.C. 73/53 [7], at p. 884, when he said:

           

"The system of laws on which the political institutions in Israel were established and now operate testifies to the fact that this is a country whose foundations are democratic. Likewise, the statements contained in the Declaration of Independence - in particular concerning the fact that the State is based on 'the foundations of freedom' and the guarantee of freedom of conscience - indicate that Israel is a freedom-loving country. It is true that the Declaration of Independence 'is not a constitutive law which lays down norms concerning the validity or invalidity of other legislation' ... but to the extent to which it 'expresses the people's aspirations and their beliefs' it is our duty to give heed to its contents when seeking to interpret and give meaning to the laws of the State, including laws enacted during the Mandate and which were adopted by the State after its establishment, through the channel of section 11 of the Law and Administration Ordinance, 1948. It is a well-known axiom that a people's laws are mirrored in their national way of life."

         

          A legal norm - whether enacted or created by the judiciary - does not stand on its own. It is a "creation which lives in its environment" (Justice Sussman, in H.C. 58/68 [8], at p. 513). It fits into its environment, influences it and is influenced by it. The "legal environment" which influences every legal norm "includes not only the immediate legislative context but also wider circles of accepted principles, basic aims and fundamental criteria which derive, in the words of President Landau, from 'the sources of social consciousness of the nation within which the judges live'.... It is not necessary to repeat these principles in every law; they constitute a kind of 'normative umbrella' over all legislation" (C.A. 165/82 [9], at p. 75).

         

          "A legislative act ... is not a one-time act cut off from the general way of life. The law takes on substance within the framework of a given legal and political system. It is one brick in an entire edifice, built on the basis of criteria of government and law which constitute the 'primary concepts of that society'...." ( E1. A. 32/84 [10], at p. 307).

         

          Therefore, a judicial norm which constituted part of the Mandatory law is absorbed into our law if it is not inconsistent with "the principles of the legal structure of our country" (Justice Landau in C.A. 65/57 [1l], at p. 409), and it continues to develop within the Israeli law against the background of the principles of that law. Its image is determined by its new environment (see C.A.81/85 [12], at p. 236). The same holds for a legislative norm which constituted part of Mandatory legislation. This nom] was absorbed into our law and if it proves to be consistent with the basic principles of our legal structure it continues to develop within Israeli law against the background of those basic principles. This is the source of the striving for "legislative harmony" (in Justice Sussman's words in Cr. A. 108/66 [13], at p. 261). Different acts of legislation, whether their historical source be Mandatory or our own independent legislation, must be interpreted together and operate as a comprehensive system (H.C. 953/87 [6], at p. 328). The nature of the basic principles can be learned from different sources, one of the most important of which is the Declaration of Independence, "which constitutes a legal charter that expresses the nation's values" (H.C. 953/87 [6], at p. 330). Justice Sussman emphasized this when he pointed out that "the way of life of the citizens of the state and the principles which every authority in the state must take as their guiding light are laid down" in the Declaration of independence (H.C. 262/62 [14], at p. 2116).

 

            The Declaration of Independence is not the only source from which one can learn about the basic values of the state. For example, the Supreme Court refers from time to time to the "basic principles of equality, freedom and justice, which are the legacy of all advanced and enlightened states" (Justice Cohen in H.C. 301/63 [15], at p. 612) and to "basic rights which are not recorded in texts, but emanate directly from the character of our state as democratic and freedom-loving" (Justice Landau in H.C. 243/62 [16], at p. 2414).

           

            10. The Defence Regulations were enacted by a colonial legislature and not by a democratic one. It was contended, after the establishment of the State of Israel, that their continued enforcement was not consistent with the changes resulting from the establishment of a democratic state. This argument was rejected by the Supreme Court (in H.C. 5/48 [l] and H.C. 39/64 [17]). Several unsuccessful attempts were made in the Knesset to abrogate them entirely (see A. Rubinstein, The Constitutional Law of Israel (3d ed. 1981) 219). But the Israeli legislature saw fit to repeal certain sections of the Regulations and to replace them with original Israeli provisions (see, for example, the Emergency Powers (Arrests) Law, 1979). These legislative changes did not affect the powers of the Military Censor. Chapter 8 of the Emergency Regulations, which deals with military censorship, has therefore remained in force in Israel. However, the interpretation of the Defence Regulations must perforce differ in Israel from that given to them during the Mandate. The Defence Regulations are today part of the legislation of a democratic state. They must be interpreted against the background of the basic principles of Israeli law. The Supreme Court has acted in this manner with respect to a long list of Mandatory laws, such as the Police Ordinance [New version] 1971, (see H.C.153/83 [18]), the Cinema Ordinance (H.C. 243/62 [19]), the Public Entertainments (Censorship) Ordinance (H.C. 14/86 [19]), the Newspaper Ordinance (H.C. 73/53 [7]; H.C. 644/81 [20]), the Prisons Ordinance [New Version] 1971 (H.C. 355/79 [21]).

 

 The same applies to the interpretation of the Defence Regulations. Justice Elon so remarked (in H.C. 234/84 [22], at p. 483):

 

          "The Mandatory Defence Regulations of 1945 do not always meet with our approval and we are of the opinion that they should be interpreted narrowly, as long as this is compatible with their wording, so as to make them consistent with the democratic principles on which the State of Israel is founded."

           

            It is true that the Defence Regulations deal with the security of the State, which influences the manner in which the basic principles of our system of law are applied to them. But this has no influence on the question whether these principles should be applied or not. Every legislative act - whether it originated during the Mandate or is purely Israeli, whether it deals with the security of the State or otherwise - must be interpreted against the background of the general principles of our system of law. State security and public order do not supplant and negate the application of basic values. They are interwoven with them, influence their nature and are balanced within their framework.

           

            11. What are the basic values which shape the interpretation of the Defence Regulations? First and foremost come security considerations, which spread their influence across the entire scope of the Regulations. The realization of this interest concerning the defense of the State and public safety and order is the main purpose of the Regulations and they must be interpreted against the background of this purpose (compare Article 6 of the Palestine Order-in-Council (Defence)). Alongside considerations of security (in their broad sense) there are other values, in the light of which every enactment in a democratic society must be interpreted, and which the Defence Regulations affect. Thus, for example, the Defence Regulations deal with the military courts. It is only natural, in this context, that the value of judicial integrity must be taken into account (see Cr. A. 126/92 [23]; Cr. A. 696/81 [24]). The Defence Regulations contain provisions pertaining to crimes, punishments and detention prior to conviction. In this context, account must be taken, among other things, of the individual's right to personal freedom and the presumption of innocence. Another chapter of the Defence Regulations deals with Unlawful Associations. In this context account must be taken, of course, of the basic right to freedom of association (see H.C. 253/64 [25]). Yet another chapter of the Defence Regulations deals with orders restricting the freedom of movement. In this context it is only natural that the right to freedom of movement will be taken into account (see H.C. 448/85 [26]). Defence Regulations which provide for military censorship prejudice, first and foremost, the right to freedom of expression. Censorship of publications prejudices privacy. The broad authority to search ("censorship of travelers") prejudices privacy, the dignity of man and the integrity of property and person. This list of basic values which are adversely affected by the Defence Regulations is by no means complete or comprehensive. It only serves to show how broad a range of values are promoted by the Defence Regulations (defense, public safety and order) and are prejudiced by them (judicial integrity, personal freedom, freedom of association, freedom of movement, freedom of expression, privacy, dignity of man and integrity of property and person.)

 

            12. In interpreting the Defence Regulations account must be taken, on the one hand, of the basic values which are their raison d'etre and, on the other hand, of the basic values which every legislative act in a democratic country must be assumed to intend to promote (see H.C. 953/87 [6]). Sometimes all these values lead to the same result. But sometimes they may clash with one another. So, for example, the values concerning the security of the State and public safety and order may clash with the values of freedom of movement (see H.C.448/85 [26]), freedom of expression (H.C. 73/53 [7]), the dignity of man (see H.C. 355/79 [21]). In all such cases the court must strike a balance between the conflicting values. In the course of discussing the need to strike a balance between the right to security and the right to freedom of expression, insofar as the powers of the Military Censor under the Defence Regulations are concerned, Justice Elon said, in H.C. 234/84 [22], at p. 483:

           

          "The existence of censorship and the prohibition of publication sometimes gnaw away at the basic right to freedom of expression, the right to inform and to be informed, which is one of the 'basic rights which are not recorded in texts, but emanate directly from the character of our State as democratic and freedom-loving'... One of the important missions of democracy is to find the proper balance between the existence and preservation of this right and the need to protect legitimate secrecy, in defense of the security of the State and the proper functioning of public safety and order, which also is an essential condition for the very existence of a democratic regime...".

           

            13. In the petition before us the value of state security clashes with the values of freedom of expression and the public's right to be informed. These conflicting values are basic to our legal system. The state cannot exist without security. Nor can the social consensus upon which the state is built. So, too, individual freedoms which the state is supposed to promote cannot exist. Hence the centrality of security in the general complex of values in the legal system. Without freedom of expression, truth cannot be disclosed, the individual cannot fulfil himself and the democratic regime, which is based on the exchange of opinions, cannot continue to exist. The free exchange of information, opinions and points of view is essential to the existence of a democratic regime, which is based on the rule of the people, by the people, for the people. Without freedom of expression democracy loses its soul (H.C. 399/85 [27], at p. 274). On more than one occasion this court has noted "the close connection that exists between the principle of freedom of expression and debate and the proper functioning of the democratic process" (Justice Agranat in Cr. A. 255/68 [28], at p. 435). It noted therefore that "freedom of expression is a condition precedent for the existence of democracy and its proper functioning" (President Shamgar in H.C. 372/84 [29], at p. 238). Freedom of expression thus has a special status. It secures the existence of a democratic regime which, in turn, secures the existence of other basic rights (see H.C. 73/53 [7] supra, at p. 878; C.A. 723/74 [30], at p. 295).

           

            14. How is the clash between the security of the State and freedom of expression to be resolved? It seems to me that if the clash between the two values is "head-on", so that there is no possibility of co-existence between them, then the security of the State must be preferred, for two reasons: First, because the security of the State is the substantive objective of the Defence Regulations and a judge-interpreter must, first and foremost, achieve this objective. Second, because a democracy must exist in order to realize itself:

           

          "A democratic regime is prepared to protect freedom of expression so long as such freedom protects democracy. But when freedom of expression becomes a tool with which to injure democracy, then there is no reason for democracy to put its head on the block for the axeman ..." (H.C. 399/85 [27] supra, at p. 287).

           

            "A constitution is not a formula for suicide and individual rights are not a platform for national destruction" (El. A. 2/84 [10], at p. 310). "A democracy does not have to commit suicide in order to prove its vitality" (Id., at p. 315). A person cannot enjoy freedom of expression if he does not have the freedom to live in the society in which he chooses to live. The right to live in a society is prior to the right to express one's opinions therein (see United States v. Progressive, Inc. (1973) [58], at 995).

           

            15. The "balancing formula" in the case of a clash between state security and freedom of expression assumes, therefore, fulfillment of the value of state security. However, because of the centrality of the basic right to freedom of expression, it seeks to limit the harm to this value as much as possible. Such harm will be allowed only if it is absolutely necessary in order to preserve the value of security. In this connection, the Supreme Court decisions stressed two main questions: first, what is the extent of the injury to state security which justifies restricting freedom of expression; second, what is the probability that state security will be injured if freedom of expression is not curbed. The approach that guides the decisions is that "the question always is, whether the extent of the injury, discounted by the possibility that it will not occur, justifies restricting the individual's right in order to prevent the danger..." (El. A. 2/84 [10] supra, at p. 311). It has been held that in a clash between state security and public safety and order, on the one hand, and freedom of expression, on the other, "freedom of expression must yield only when the injury to the public order is severe, serious and grave" (H.C. 14/86 [19], at p. 435). Hence, only when the injury to the public order is severe and substantial will it justify curbing freedom of expression. Likewise, it has been held that the probability of injury which would justify limiting freedom of speech must amount to a "near certainty". "For this court to prohibit a person in charge of public broadcasting from publishing a particular matter, such extreme circumstances must exist as to constitute a real and nearly certain danger to the safety of the public at large..." (President Shamgar in H.C. 1/81 [31], at p. 378); "According to Justice Agranat (as his title then was), the important right of freedom of expression yields to the public interest when there is a 'near certainty' that the exercise of this right in a particular instance would endanger the public or the security of the State..." (Justice D. Levin in H.C. 243/82 [32], at p. 766). Such a probability does not exist when it is possible to take other measures - apart from restricting personal freedom and freedom of expression - in order to minimize the danger. Curbing freedom of expression should not be the first means; it should be the last means (see H.C. 153/83 [18] supra, at p. 407; H.C. 14/86 [19] supra, at p. 437; H.C. 554/81 [33], at p. 252). "I consider censorship a measure to be used only in the rarest of cases when there is no alternative". (Justice Witkon in H.C. 243/62 [16] supra, at p. 2425).

 

            16. We have seen that in different statutory contexts (such as the Police Ordinance [New Version], the Newspaper Ordinance, the Broadcasting Authority Law, 1965, the Public Entertainments Ordinance (Censorship)) this Court adopted an interpretive approach in accordance with which freedom of expression may be restricted in order to protect the security of the state and public order only when there is a near certainty that substantial injury will occur to such state security and public order if freedom of expression is not curbed. Does this approach apply to the interpretation of the Defence Regulations? Counsel for both sides answered this question affirmatively, and I agree with them, for four reasons. First, from the semantic point of view, the Military Censor's authority is conditioned on belief that the publication is likely to prejudice security. This term, "likely", is the same term which was the basis for the "near certainty" formula in H.C. 73/53 [7]. Second, the interpretive approach referred to above is not based only on the word "likely" in the Defence Regulations. It reflects a principled approach to the comparative weight of the values of state security and public order, on the one hand, and freedom of expression, on the other hand, and to the proper balance between them. Justice Landau emphasized this in H.C. 243/62 [16], at p. 2418:

           

"In the 'Kol Ha-Am' case, the court interpreted the specific statutory provision in section 219(2)(a) of the Newspaper Ordinance, whereas here we are dealing with administrative discretion which is not further defined in section 6(2) of the Cinema Ordinance. But the decision in 'Kol Ha-Am' was reached on a broad conceptual basis which is just as applicable to the matter before us".

           

            In quoting Justice Agranat in H.C. 73/53 [7], in connection with the test of near certainty, Justice D. Levin pointed out, in H.C. 243/82 [32], at p. 765:

           

          "These penetrating and instructive words have become a corner-stone in our judicial system, and the principles contained in them are accepted by everyone, without any reservations".

           

            This court adopted this approach in additional cases (see H.C. 292/83 [34], at p. 456; S.S.A. 5/86 [35], at p. 237; H.C. 448/85 [26] supra; H.C. 1/81 [31] supra; H.C. 259/84 [36]; see also P. Lahav, "Freedom of Expression in Supreme Court Judgments", 7 Mishpatim (1976-77) 375).

           

            Third, there is nothing special about the Defence Regulations and therefore no reason to deviate from the general conception accepted in Israel in similar matters. There is no substantive difference between "military" censorship and "civil" censorship, and the same weight should be given to state security, on the one hand, and freedom of expression, on the other, in both. There is no real difference between a "military" officer and a "police" officer in matters concerning the security of the state and public safety vis-a-vis freedom of expression. It is true that the dangers to security which the Defence Regulations seek to prevent may sometimes - but not always - be more severe than the danger to the public order which other laws seek to prevent. This relative difference will be expressed in the fact that it will be easier to show that the danger of injury to state security is substantial and severe and that the probability of its occurrence is nearly certain (see, for example, H.C.562/86 [37]). There is no reason, however, why this difference in the gravity of the danger that exists in some cases should result in the application of different fundamental tests. Therefore, when the question arose as to what test should be applied in deciding what information should not be published by the Broadcasting Authority in connection with interviews with a representative of the P.L.O., this court applied the test of "near certainty". Justice D. Levin pointed out that "the important right of freedom of expression yields to the public interest when there is a 'near certainty' that the exercise of this right in a specific instance is likely to endanger public safety or the security of the state..." (H.C. 243/82 [32], at p. 766). President Shamgar reiterated the same approach when he pointed out that "no right should be denied in advance save when there is a near and inevitable certainty that a crime will be committed or that security or public safety will be injured..." (El. A. 2/84 [l0] supra, at p. 266). Fourth, on its merits, it seems to me that the test of near certainty of substantial damage to the security of the state is the desirable one. It expresses correctly the comparative social importance of the conflicting principles, according to the standards of the "enlightened public" - the standard we use in similar circumstances (H.C.58/68 [8] supra, at p. 520). "The court must determine the borderline between what is permitted and what is forbidden in every case according to its judgment, guided by the enlightened concepts that prevail in modern society, while remembering that every limitation of freedom of expression exudes an odor of censorship, and in borderline cases the tendency should therefore be to permit rather than to prohibit" (Justice Landau in Cr. A. 495/69 [38], at p. 41l). This test protects the security of the state and public safety, on the one hand, since it prevents a publication that entails a near certainty of substantial damage to these values. At the same time, this test protects freedom of expression in broad and comprehensive areas, and allows thereby the achievement of the aims which freedom of expression seeks to achieve. Any attempt to apply a test that is more restrictive of freedom of expression could have harsh results both for freedom of expression and for democracy. It should not be forgotten that we are dealing with censorship which prevents publication in advance, and thereby not only "chills" freedom of expression but "freezes" it (see A.M. Bickel, The Morality of Consent (New Haven, 1975) 61). This freezing effect is done without any judicial process or judicial decision. It is, therefore, especially important that the denial of information to the public should occur only in exceptional and unusual circumstances. The near certainty test expresses this approach. It is not superfluous to note that the test in cases of prior restraint is much more stringent in the United States. The rule there is that prior restraint is forbidden, except when the publication affects the security of the state directly, immediately and unavoidably, as for example, the physical safety of participants in a military operation (New York Times Co. v. United States (1971) [59]; Near v. Minnesota (1931) [60]). We have not adopted this test in Israel. But we have pointed out that the distinction on which it was based - between prior restraint of publication and punishing the publisher after the fact - justifies adopting the "near certainty" test in Israel rather than a more lenient one. Justice Agranat noted this consideration in H.C. 73/53 [7], at p. 886:

 

"We have dwelt on this Anglo-American approach to the use of prior restraint because it demonstrates very well that - insofar as the tendency to protect the interest of freedom of expression is concerned - this is a very strong and extreme measure. If the Israeli legislator nevertheless saw fit to leave intact the powers defined in section 19(2) (a), it must be understood that it did so because of the state of emergency the country has known ever since its establishment. But, on the other hand, the Israeli legislator should not be assumed to have intended to give the authority in charge of implementing these powers - particularly since they are so severe and drastic - the right to cease publication of any newspaper merely because the matters published therein appear to it to tend to endanger the public safety but do not constitute direct incitement to this end, or at least encouragement, as could bring that result substantially closer in the circumstances. It would be out of the question to attribute such an intention to the Israeli legislator since, on the one hand, as we have already said, Israel is founded on principles of democracy and freedom, and, on the other hand, adopting such an abstract and obscure test as 'a bad tendency' would inevitably open the door wide to the influence of the personal opinions of the person entrusted with the above powers - however noble his aspirations might be - when evaluating the danger feared, as it were, to the public safety as a result of the publication concerned".

 

            Consequently, Israeli society of today, which sees the need to protect security and public safety on the one hand and freedom of expression on the other hand, cannot find a better balance between them than in the formula of a "near certainty". President Shamgar discussed this in El. A. 2/84 [10] supra, at p. 265:

 

"If there be a near certainty that the exercise of a particular right in a concrete case will injure public safety and order, then the statutory authority so empowered may restrain the exercise of the right in the said circumstances".

 

            Absent a near certainty of real danger, it is important that there be a free exchange of opinions and ideas. This is important in matters of security no less than in other matters. Precisely because security matters affect the very existence of society, it is important that the public be informed concerning the various problems, so that it may reach intelligent decisions on problems which concern it.

           

"On matters affecting the national interests, the people must be provided with all the pertinent information so that they can reach intelligent, responsible decisions. The first constitutional principle is that a self-governing people must have a thorough knowledge and understanding of the problems of their government in order to participate effectively in their solution... In the absence of strong and effective governmental checks and balances in the areas of national defense and international affairs, the only effective restraint on executive power lies in a well-informed citizenry. Without an alert, free and diligent press there cannot be a well-informed citizenry. Only if the government is vigorously and constantly cross-examined and exposed by the press can the public stay informed and thereby control their government" (R.F. Flinn, "The National Security Exception to the Doctrine of Prior Restraint", 13 Wm. & Mary L. Rev. (1971-72) 214, 223).

 

            Precisely because of the implications for the life of the nation contained in decisions of a security nature, the door should be opened to a free exchange of opinions on matters of security. In this connection it is particularly important that the press be free to serve as a forum for the exchange of opinions and for criticism in matters of vital interest to the public and the individual. It appears to me, therefore, that the near certainty test is the proper test to be applied when examining the Military Censor's powers under the Defence Regulations.

 

       17. To summarize: the Mandatory Defence Regulations must be interpreted against the background of Israel's values. In interpreting them one must balance state security and public safety and order, on the one hand, and freedom of expression, on the other. This balance means that freedom of expression can be restrained, as a last resort, only when there is a near certainty of substantial danger to state security and public order.

      

       The second question: Restrictions on the exercise of discretion

      

       The Military Censor's discretion is subjective. He may prohibit publication of material which "in his opinion, would be, or be likely to be or become, prejudicial" to the public safety or order. Does this discretion render the examination of criteria for the determination of the existence of danger superfluous? Could it not be said that all that is required is that this discretion be exercised in good faith? The answer to these questions is in the negative. Subjective discretion is not absolute. It does not empower the holder of the discretion to choose whatever alternative is in his opinion correct. Subjective discretion is limited (see F.H. 16/61 [39]). Just as any other discretionary power, it must comply with the following demands: first, it must be exercised within the limits of the enabling law that grants the discretion; second, the person who has the discretion must act subjectively to fulfil the objective criteria which fix the conditions for the exercise of the discretion; third, the person who has the discretion must choose one of the various legal options available to him in good faith, without caprice, after weighing only the relevant considerations, and reasonably; fourth, the selection from among the various possibilities must be based on reasonable evaluations and on facts established on the basis of convincing and credible findings, which do not leave room for doubts. I shall deal briefly with each of these requirements.

      

            19. Subjective discretion must be exercised within the limits of the : enabling law. So said President Agranat in H.C. 241/60 [40], at p. 1162:

           

            "The general principle is that every administrative authority must act within the limits of the purpose for which the law has granted it the particular power; and this rule also applies to a power which it may exercise according to its 'absolute discretion'".

 

            Justice Sussman repeated the same idea in F.H. 16/61 [39], at p. 1216:

           

"Discretion which is granted to an administrative authority - even if it be absolute - is always linked to a duty which the authority must fulfil - that is, to the administrative tasks for the purpose of which the authority was empowered to act in its discretion. However extensive the freedom of choice may be, it is never unlimited".

 

"Statutory discretion can be broad or narrow, but it is always limited. The number of possible choices available to the decision-maker may be many or few, but it is never unlimited. In this way the law protects the freedom of the individual... Even the most absolute of discretion must confine itself to the framework of the law which gave it life" (H.C. 742/84) [41], at p. 92).

 

            Therefore, whoever is vested with discretion by the Defence Regulations may exercise this power in order to realize the aims that underlie the Regulations, but not to realize any extraneous aims (see H.W.R. Wade, Administrative Law (Oxford, 5th ed., 1982) 394).

           

            20. Every administrative power is subject to certain conditions and demands. The legal application of the authority requires that these conditions and demands be observed in practice. The subjectivity of the person in authority must be aimed at implementing these conditions and no others. Therefore, if the correct interpretation of section 87 of the Defence Regulations is that a newspaper publication may be prohibited only if the Censor believes that there is a near certainty that the publication will cause substantial injury to security, then the Censor's thoughts must be directed toward the issue whether such a near certainty exists. If, therefore, the Censor prohibits a publication without being satisfied that it creates a near certainty of danger to security, he has not exercised his discretion lawfully.

 

            21. The exercise of discretion assumes freedom to choose between lawful options. The exercise of subjective discretion assumes that the choice between options will be based on the authority's evaluation of the options. This evaluation must be conducted in accordance with the rules of administrative law. It must therefore be made in good faith, without being arbitrary or discriminatory and on the basis of all the relevant considerations, and these alone. Furthermore, evaluation of the options and the selection of the preferred option must be done reasonably (H.C. 389/80 [42]). Subjective discretion and the objective test of reasonableness are not incompatible, but are complementary. Establishing the lawful option must be done according to the test of reasonableness. The power of discretion does not authorize an administrative authority to fashion an unreasonable option. Sometimes there are several options, all of which are reasonable. A range of reasonableness is created. Discretion allows the administrative authority to choose one of these options. Therefore, the Military Censor must consider whether there exists a near certainty that a newspaper publication will cause substantial injury to security. This must be done reasonably, taking into account the needs of security, on the one hand, and freedom of expression on the other, achieving a balance between them in accordance with the test of "near certainty" (see H.C. 910/86 [43], at p. 48l). This process may raise a number of possibilities, all of which satisfy this test. A "range" of lawful possibilities is then created. The discretion to choose the correct option in this range is given to the Military Censor. He has the power to choose whatever option appears best to him from the options in this range. He has no discretion to select an option that is outside of the range.

           

            22. Regulation 87 of the Defence Regulations provides that the Military Censor may prevent publication if in his opinion the publication is likely to prejudice - that is, if there is a near certainty of substantial damage to - the security of the State. What does it mean to say that the decision concerning the existence of prejudice - that is of a near certainty of substantial damage - is in the discretion of the Chief Censor? It means that the Censor - and only the Censor - has authority in this matter, and if there be several legal choices, only he may make the selection. This provision does not mean that the Chief Censor may reach his decision in any manner which he chooses. The Censor's decision must be reasonable. In other words, it must be assumed that a reasonable censor would have made such a decision in the circumstances of the case. I elaborated on this point in another case:

 

"Discretion concerning the existence of near certainty and the gravity of the danger is vested in the Council. It must exercise this discretion reasonably. There are often several reasonable options, which all accord with the said test. A range of reasonableness is created, within which the court will not interfere... But it will interfere if the Council chooses an option which is not within this range. The Council does not have the discretion to choose an option which does not constitute a near certainty and does not contain an element of grave danger. The mere fact that the Council subjectively believes that the danger is grave and that the likelihood of its occurrence is nearly certain is not decisive. The test whether there exists a near certainty of grave danger is objective. The court must be satisfied that a reasonable council could have reached the conclusion that the danger was grave and that its occurrence was a near certainty on the basis of the facts available to it" (H.C. 14/86 [19], at p. 438).

 

            In determining the reasonableness of the Military Censor's decision, account must be taken of the complex of facts, on the one hand, and of their evaluation in accordance with the test of near certainty of substantial harm to security, on the other. In every case the question is whether a reasonable Military Censor could conclude, on the basis of the given facts, that the publication was likely to cause - in other words, that there exists a near certainty that it would cause - grave or substantial damage to the security of the State.

 

            23. The Military Censor's decision concerning the existence of danger to the security of the State must be based on facts and on evaluations. As to the facts, they are determined by the Chief Censor on the basis of the evidence before him. The determination of the facts must be done according to the usual criteria of administrative law. The test is whether a reasonable governmental authority would have regarded the material before it as having sufficient probative value (H.C. 442/71 [44]; H.C. 361/82 [45], at p. 442). The reasonableness of the decision is a function of the values involved in the decision. Therefore, if the exercise of administrative discretion would prejudice human rights, then persuasive and credible evidence, which leaves no doubt, would be required. Justice Shamgar noted this in H.C. 56/76 [46], at p. 692:

 

"It is true that evaluation of the evidence is, first and foremost, within the prerogative of the authority... But if the authority seeks to deny recognized rights, then while the authority need not base its decision on previous court judgments, still, convincing evidence, which leaves no room for reasonable doubts, is required".

 

            President Shamgar repeated the same idea in H.C. 159/84 [47], at p. 327:

           

"H.C. 56/76... dealt with the question of denial of existing rights, and it was held there that to reach a decision the authority had to have before it convincing and credible evidence, which leaves no room for doubt. I agree with this test. When dealing with the denial of recognized rights or of basic rights ... the evidence required in order to satisfy a statutory authority that it is just to grant a deportation order must, generally, be clear, unequivocal and convincing".

 

            Therefore, the finding that if the publication will not be prohibited there will be a near certainty of substantial injury to the security of the State must be based on clear, unequivocal and convincing evidence. Still, one must not forget that the finding that there exists a near certainty of substantial damage to security must, by its very nature, be based not only on facts but also on the evaluation of future developments. While this evaluation must be based on clear, unequivocal and convincing evidence, nevertheless it must, by its very nature, look to the future and it must necessarily deal with both risks of danger and favorable possibilities. All that can be required in this connection is that the examination of the matter be reasonable. One cannot demand that the Military Censor be imbued with the gift of prophesy.

           

            The third question: the Scope of judicial review

           

            24. After the establishment of the State it was held that the scope of judicial review of the powers of authorities that operate under the Defence Regulations is extremely limited. Justice Agranat noted this in H.C. 46/50 [48], at pp. 227-228:

           

"This court's jurisdiction, when reviewing the acts of the competent authority under the Defence (Emergency) Regulations, 1945, is extremely limited. When the regulation in question empowers the authority to act against an individual whenever that authority is "of the opinion", or "it appears to it", that conditions exist which

so require, then the competent authority itself generally has the last word concerning the question whether those conditions exist. In such cases, this court can only examine whether the said authority exceeded the powers vested in it by the regulation under which it presumed to act, whether it took account of all the factors fixed by law, and whether it acted in good faith. As it is subject to this limited power, the court cannot review the reasons which induced the competent authority to issue the order in question."

 

            This approach was based on the subjective nature of the authority, on its "security" nature and on the English precedents which were current at the time and which took a similar position (primarily Liversidge v. Anderson (1941) [61]).

           

            25. With time there came a gradual broadening of the scope of judicial review. This was the result of developments concerning the nature of subjective discretion and the understanding of judicial review. Considerable judicial experience also accumulated, which enabled expansion of the scope of judicial review of administrative discretion in security matters. Similar developments occurred in England itself where, in the course of time, it became clear that subjective discretion is not essentially different from any other discretion. Justice Sussman noted this in F.H. 16/61 [39] supra, at p. 1218:

           

"I doubt whether there be any difference in principle between  'ordinary' discretion and absolute or 'subjective' discretion. Several objective tests have been established for subjective discretion as well, such as that the absence of good faith, arbitrariness or deviation from the purpose entrusted to the authority would lead to annulment of the administrative act."

         

          Hence, even when exercising subjective discretion, the government authority has the "objective" duty to observe the provisions of the law. Moreover, subjective discretion is flawed not only by "subjective" defects in the authority's acts, such as lack of good faith or arbitrariness. Subjective discretion must be exercised reasonably. Thus, the subjective factor in discretion, too, is measured by objective criteria (H.C. 389/80 [42] supra). There is, therefore, no basis to restrict judicial review or to examine only "subjective" defects such as malice or lack of good faith. This approach is reinforced in the light of our understanding of the essence of judicial review, which draws its force from the principle of separation of powers and the need to ensure governmental legality (see H.C. 910/86 [43] supra). There is no reason why an administrative court should not examine the full scope of administrative discretion according to the test of legality, for otherwise certain areas of discretion would be immune to judicial review. This immunity would ultimately lead to infringement of the law, since where there is no judge there is no law. Therefore, administrative discretion should be examined from the perspective of the laws which determine its legality. If the jurisprudence of administrative discretion (both substantive and procedural) determines that there is a defect in a particular exercise of discretion, then the administrative court should be prepared to review the legality of that exercise of discretion. There is no reason why certain fields of administrative discretion should not be subject to judicial review (subject, of course, to claims of lack of standing, or lack of jurisdiction or other such preliminary claims). Hence there is no basis for the view that the subjectivity of administrative discretion limits the scope of judicial review to certain defined issues. The proper conception is that it is the jurisprudence of discretion which fixes the conditions which determine when the exercise of discretion is legal and judicial jurisprudence establishes that the court has the power to examine whether these conditions are met. It is not the scope of judicial review which determines the legality of administrative discretion but, rather, the legality of the administrative discretion determines the scope of the judicial review (compare H.C. 731/86[49], at p. 458). Judicial review of administrative discretion has been expanded hand in hand with the development of administrative law concerning subjective discretion and the broadening of the legal demands upon administrative discretion. It is interesting to note that as early as H.C. 73/53 [7], which held that the exercise of subjective discretion by the Minister of the Interior had to pass the test of near certainty, Justice Agranat pointed out that:

 

"The expression 'in the opinion of the Minister of the Interior', referred to in section 19(2)(a), requires that we hold that evaluation of the publication's influence on public safety in the circumstances is always the exclusive prerogative of the Minister and, therefore, the High Court of Justice will not interfere with his exercise of discretion unless, in making his evaluation, he deviated from the test of 'near certainty', in the light of the meaning of 'danger to the public safety'; or he paid no attention - or at best only a modicum of attention - to the important interest of freedom of the press; or he erred in the exercise of his discretion in some other way because he was carried away by trivial, untenable or absurd considerations".

 

            This formula accorded well with the law of administrative discretion as it was developed more than thirty years ago. In the meantime the jurisprudence of discretion has been developed. It has been held, inter alia, that an unreasonable decision is unlawful, even if it is not untenable or absurd. Parallel to this development has come the development of the law of judicial review, and it has been held that judicial review may also be invoked when administrative discretion has been exercised unreasonably. The subjectivity of the Military Censor's discretion cannot, therefore, limit the scope of judicial review. Such review must attend to every one of the elements which govern the legality of the Military Censor's exercise of his discretion. There is no room for any "dead space".

           

            26. Considerations of security have deterred judicial review of administrative discretion in the past. It was thought that judges should not interfere since they are not experts in security matters. But in the course of time it has become clear that there is nothing unique about security considerations, in so far as judicial review is concerned. Judges are also not administrative experts, but the principle of separation of powers requires that they review the legality of the decisions of administrative officials. In this connection, security considerations have no special status. They, too, must be exercised lawfully and they, too, are subject to judicial review. Just as judges can examine the reasonableness of professional discretion in every other field and are required to do so, so can they examine the reasonableness of discretion in security matters and must do so. From this it follows that there are no special restrictions on the judicial review of administrative discretion in matters of state security. I so held in another case in which I said that:

 

          "There is a great deal of power concentrated in the hands of the military government and, for the rule of law to hold sway, judicial review must be applied in accordance with the usual tests" (H.C. 393/82 [50]).

           

            The court does not hold itself out as a security expert and it does not replace the security discretion of the competent authority with that of a judge. The court examines only the lawfulness of the security discretion, including its reasonableness. In this connection, there is no difference between the scope of review of security discretion and the scope of review of any other administrative discretion. The court never becomes a supra-governmental authority, but only reviews the lawfulness of the exercise of governmental discretion. In this sense, security considerations are not special. The scope of judicial review should be uniform for all government authorities. In the absence of any express provision of law it is not desirable that certain government authorities should enjoy immunity from judicial review. Similarly, it is not desirable, for example, to limit the scope of judicial review of the Attorney General's discretion to the question whether he acted in good faith. I pointed out that:

           

            "With regard to the scope of the court's intervention, there is no difference between the Attorney General and any other public functionary. The one, like the other, must exercise discretion fairly, honestly, reasonably, without arbitrariness or discrimination, after weighing relevant considerations only. All are subject to judicial review, and just as there is no special law for the Attorney General concerning the court's jurisdiction, there is no special law for him concerning the scope of judicial review..." (H.C. 329/81 [51], at p. 334; see also H.C. 292/86 [52]).

 

            The same rule applies to a government authority that has security powers. There is only one rule for all with respect to the scope of our intervention. All are subject to the rule of law and to judicial review, in accordance with the usual and accepted grounds for review which reflect the legal demands of administrative law. Thus, when we reviewed the scope of the District Commissioner's powers under the Defence Regulations to cancel a permit to publish a newspaper, we held in H.C. 541/83 [53], at p. 840:

           

"... Once the Commissioner has given the reasons for his decision, these reasons are subject to judicial review as any other exercise of administrative discretion...".

 

            This same approach applies to the present matter as well. Once the Military Censor has given the reasons for his decision, these reasons are subject to judicial review the same as any other exercise of administrative discretion (compare also H.C. 2/79 [54]; H.C. 488/83 [55], at p. 725).

           

            27. It should be noted that the limitation of the scope of judicial review over the exercise of discretion in matters of security, within the framework of the Defence Regulations, was based in the past largely on the majority decision in the House of Lords in the Liversidge [61] case. The Supreme Court relied on that decision when it held that "the power of this court, when called upon to review acts of the competent authority acting under the Defence (Emergency) Regulations, 1945, is extremely limited" (H.C. 46/50 [48], at p. 227). Since then, however, there has been an important development in England itself. The majority decision in the Livelrsidge case no longer reflects the current rule. This was stated in a series of judgments (see, for example, Nakkuda v. M.F. De S. Jayaratne (1951) [62]; Ridge v. Baldwin (1964) [63]). Lord Diplock's words in this connection are characteristic:

           

 "For my part I think the time has come to acknowledge openly that the majority of this House in Liversidge v. Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right" (Reg v. I.R.C., Ex. p. Rossminister Ltd. (1980) [64], at 10/l).

 

            Since then the English courts do review security acts of authorities with powers based on defence regulations or emergency legislation (see Wade, supra, at 394). In Israel it has been held that the Supreme Court no longer follows the majority decision in the Liversidge case. President Shamgar noted this in H.C. 554/81 [33], at p. 251:

           

"There is no doubt that the above Regulation 110 grants far-reaching powers, which must be used with proper caution, while taking scrupulous care to observe the preconditions which justify their use. Therefore, the court will examine the exercise of these powers with proper vigilance and will not follow those restraints and limitations which previously characterized the English judgments dealing with the exercise of similar powers in England (Liversidge v. Anderson and another (1941)), which also found an echo in H.C. 46/50 supra".

 

            The very far-reaching character of government security power and the harm which the exercise of this power can cause to basic human rights require - as Justice Shamgar noted - that this court examine the exercise of the power "with proper vigilance".

           

            The fourth question: Review of the Censor's decision

           

            28. The Military Censor is empowered to prohibit publication of an article if there is a near certainty that its publication will cause substantial injury to the security of the State. It is within the Censor's discretion to decide whether such a near certainty exists and he must exercise this discretion reasonably. The question before us is whether the Military Censor's decision with respect to the subject matter of the petition before us complies with these tests. In order to answer this question we must distinguish between the Censor's decision to prohibit publication of criticism of the head of the Mossad and his decision concerning the timing of his replacement. We shall deal with each of these decisions separately. It should be noted that the parties now agree that publication of facts which could lead to identification of the head of the Mossad is forbidden, since such publication meets the required test.

 

            Criticism of the head of the Mossad

           

            29. The Military Censor's position is that "criticism of the head of the Mossad, as such, as well as criticism of the efficiency of his performance and the legitimation of such criticism which would derive from permitting its publication in Israel (as distinguished from its publication abroad) injures the functioning of the Mossad at all levels, including but not limited to, the field of state security and its connections with parallel organizations in other parts of the world and with its own field operatives". He stresses that "by way of contrast, those parts of the article containing expressions of the author's opinion and criticism of the Mossad and its functioning in general were not disqualified". He summarizes his stand on this matter by noting that "the essence of the matter is not in the prohibition of a publication because of any personal prejudice to the person referred to in the publication, but rather because, so long as the person concerned serves in his position, any factual reference to him as such, to his functioning or to the results thereof in the field - amount to prejudicing the security of the State, because of substantial relevant considerations".

           

            30. Examination of the Military Censor's reasoning shows that he does not complain that the newspaper article contains references to Mossad activities, or those of its head, whose publication could harm the security of the State. The Censor's explanation is directed at prejudice to the effectiveness of the head of the Mossad's functioning if such criticism may be published. In this connection, the Military Censor distinguishes between criticism of the head of the Mossad which, in his opinion, prejudices the security of the State and is therefore not permitted, and criticism of the Mossad itself, which would not be prohibited. In my opinion this reasoning does not stand up. Publication of criticism of the functioning of the head of the Mossad does not create a near certainty of substantial harm to the security of the State. We have here a remote possibility - "a bad tendency" in the words of Justice Agranat in H.C. 73/53 [7] – which has no place in our system of law. On the contrary: in a democratic society it is only right to allow criticism of persons fulfilling public functions. Of course, criticism is not pleasant, and sometimes it can even cause harm. That is true of criticism of the head of the Mossad or of the Prime Minister or of any other office holder. But this unpleasantness is not reason to silence criticism in a democratic society, which is built on the exchange of opinions and public debate. It may be assumed that criticism of the Prime Minister, for example, creates some possibility of causing damage to his functioning, to public confidence in him and to his ability to conduct negotiations with heads of other countries. This possibility does not provide a sufficient basis for prohibiting publication of the criticism. Freedom of expression is also freedom to criticize and and the freedom to harass public functionaries with bothersome questions. Occasionally the criticism is not justified. It is sometimes petty. Sometimes it injures. That does not justify prohibiting its publication. It is worth repeating and and emphasizing Justice Landau's penetrating words in H.C. 243/62 [16] supra, at p. 2416:

 

"A governing authority which takes unto itself the right to decide what the citizen ought to know, will eventually decide what the citizen should think; and there is no greater contradiction to true democracy, which is not 'guided' from above".

 

Justice Witkon repeated a similar idea when he said that:

 

"All serious and relevant criticism is entitled to be protected against government intervention (unless it reveals vital secrets)..." (A. Witkon, "Thoughts and Memories From Childhood Concerning Freedom of the Press", in Law and Judging; Collected Articles (Schocken Press, A. Barak, M. Landau, Y. Neeman, eds., 5748) 168, 180).

 

            In deciding to prohibit publication of criticism of the head of the Mossad's performance, the Military Censor did not give sufficient weight to the principle of freedom of expression. True, the Censor repeatedly declared before us that "on no account does he dispute the fact that the right of expression and freedom of expression must be honored - in our case, in the press - as they lie at the foundation of our system, and that he was guided by this in his considerations". But rhetoric is not enough. The basic principle must shape the actual decision. It is not enough to say that freedom of expression is a basic principle in our system. Practical significance must be given to this statement. Justice Bach rightly noted, in referring to freedom of expression, that :

 

            "The principles upon which this court has insisted in the past ... may not be used merely as an ideological flag to be waved externally, but must also actually guide us in fact in our day-to-day decisions" (H.C. 243/82 [32] supra, at p. 784).

           

            And I added, in another case, that if we do not do so, then

           

            "everything that we established on the normative level will disappear in the world of practical reality. The court must examine not only the law but its implementation as well, not merely rhetoric, but also practice..." (H.C. 14/86 [19] supra, at p. 439).

           

            31. A democratic regime is a regime of checks and balances. These checks and balances are, first and foremost, the product of the mutual relations between the governing authorities - the legislative, the executive and the judicial - among themselves (see H.C. 73/85 [57]). In a democratic society there are other checks as well. The State Comptroller is in charge of oversight. But such checks are not exclusively those of the governmental authorities. There are other checks, outside of the ruling framework itself. Among these, the press performs a vital function. Its task is to expose failings and to protest against them. A free regime cannot exist without a free press. The press must therefore be allowed to fulfil its function, and only in exceptional and special cases, in which there exists a near certainty that substantial harm will be caused to the security of the State, is there room to prohibit publication of information in the press. In principle, it is difficult to imagine a case in which criticism - as distinguished from the disclosure of facts - could provide a basis for the existence of near certainty of substantial harm to the security of the State. The burden of proof in this connection must rest on the Censor. He has failed to satisfy it. On the contrary, we are persuaded that the probability of harm to the security of the State is remote and the harm is not substantial. Indeed, it is, difficult to accept the position that criticism of the Mossad itself does not create a near certainty of substantial harm to the security of the State, but criticism of the head of the Mossad does create such a risk. This distinction appears to me to be artificial; just as criticism of the Mossad itself does not create the near certainty required to allow prior restraint on freedom of expression, so too, criticism of the head of the Mossad does not meet the test required for justifying restriction of freedom of expression. In the New York Times Co. case [59], at 714, the United States Supreme Court noted, in quoting a previous decision, that:

 

"Any system of prior restraints of expression comes to this court bearing a heavy presumption against its constitutional validity".

 

            The same holds true in this case. Every prior restraint of freedom of expression carries a heavy presumption that it is unlawful. One who seeks to show that the prior restraint of freedom of expression is lawful carries a heavy burden. The Military Censor did not sustain this burden.

           

            Publication of the timing of the replacement of the head of the Mossad

           

            32. The Military Censor forbade the Petitioners from publishing details concerning the timing of the replacement of the head of the Mossad. The reason given was that -

           

"there are those who concern themselves with such matters who could more easily focus on the person [the head of the Mossad], his movements and his activities and put this information to practical use to identify the head of the Mossad, particularly abroad. This poses a real danger to his security".

 

            In my opinion this reason, too, cannot stand up to review. The possibility that publication of the date of the forthcoming replacement of the head of the Mossad would increase the danger to his security appears to me to be purely speculative. No data whatever were brought before us - save for the above evaluation - which support this claim. Is it argued that hostile elements could identify the head of the Mossad because there would be an increase in overseas flights? This is a baseless argument in my opinion. But even if we assume that there is some merit to this argument, is it not possible to take precautions so as to reduce the risks? It appears to me, therefore, that in this case, too, the Military Censor did not give sufficient weight to the value of freedom of expression. The exchange of opinions concerning the desired qualities of the head of the Mossad is particularly important when a new appointment is imminent. It sharpens the public perception of the vital nature of the office and of the qualities which the holder of the office should have. By this means - and by public debate - it may influence the decision of those in charge of making the said appointment. The very knowledge that the appointment will be the subject of the public exchange of opinions and pubic criticism affects the considerations of those empowered to decide and can prevent an undesirable appointment. Such debate will be effective if it is conducted before the appointment, not after it. It is, therefore, important that the public know of the forthcoming appointment. This is one manifestation of the importance of freedom of expression and the public's right to know. Of course, if there is a near certainty of substantial harm to the security of the State, there is no escape from prohibiting publishing the fact of the forthcoming appointment. But, as already said, I am not at all satisfied that such a near certainty in fact exists. Indeed, the Censor himself allowed publication of the following article in one periodical:

 

"Generally, as the termination of the office of head of the Mossad draws near, there is a growing amount of agitation concerning the appointment of the next head of the Mossad. A group of ex-Mossad members sought a meeting, at their own initiative, with people at the political level in order to prevent the appointment of a candidate they considered unsuitable."

 

            When the Military Censor was asked about this publication he replied that the article in question "dealt with what happens before termination of the office' in general'". Also, that article does not contain any concrete reference to the timing of the termination of the office, as in our case. The Censor's explanation is not convincing. Examination of the article reveals clearly that a group of ex-Mossad members asked for a meeting at a specific time in the present, and it is difficult to distinguish between that article and the one in our case. The difference between the two articles is so slight that one cannot justify any distinction between them, either from the point of view of security of the State or from that of the interest of freedom of expression.

 

          33. It might be argued: the Military Censor believes that there is a near certainty of harm to state security if criticism of the head of the Mossad and the fact of his impending replacement are published. That is sufficient to justify prohibition of the publication, even if the court thinks that a near certainty does not exist. This argument is unacceptable, as we have already seen. The Censor's position that there exists a near certainty of real damage to state security must be reasonable. His evaluations - based on strong evidence - must be reasonable. In our opinion, the Censor's position and his evaluation are not reasonable. In adopting this approach we are not turning ourselves into a super-censor. We are merely holding that a reasonable censor, functioning in a democratic regime and required to strike a balance between security and freedom of expression, would not arrive at the same conclusion as the first Respondent.

         

          Conclusion

         

          34. Before concluding I would like to state that I do not wish to cast any doubt whatever concerning the Military Censor's good faith. He has a difficult task, which he has to discharge under difficult conditions. Still, it is important to reiterate that the Defence Regulations - even though their source is Mandatory-autocratic - are applied in a democratic country. In these circumstances, their character must be fashioned against the background of their new democratic environment. Of course, democracy is entitled and obliged to defend itself. The democratic state cannot be established without security. But it should not be forgotten that security is not only the Army. Democracy, too, is security. Our power lies in our moral strength and our adherence to democratic principles, precisely when we are surrounded by great danger. Security is not an end in itself, but a means to an end. The end is the democratic regime, which is the rule of the people and which respects the rights of the individual, among which freedom of expression occupies an honored place. Everything must be done, therefore, to minimize the possibility that security considerations will restrict freedom of expression, which is one of the principal values which security is supposed to protect. The way to achieve this balance between security and freedom of expression is to maintain freedom of expression and restrict it only when there is a near certainty of substantial harm to security and there is no other way to prevent the danger while preventing the injury to freedom of expression. The Military Censor must reach his difficult decisions against the background of this basic understanding.

 

            The result is that we make the order nisi absolute to the effect that publication of those parts of the article containing criticism of the head of the Mossad or references to his forthcoming replacement may not be prohibited. We reiterate that publication of any matter that could lead to the identification of the head of the Mossad is forbidden. We also assume that those parts of the article, the publication of which the Petitioners agreed not to publish, during the course of the proceedings before us, will not be published, while those portions, whose publication the Respondents permitted in these proceedings will be published.

           

            The Respondents will bear the Petitioners' costs in the amount of NIS 3,000, including advocates' fees. This amount will bear interest and be linked until payment.

           

            Maltz J.: I concur.

           

            Wallenstein J.: I concur.

           

            Decided as stated in Justice Barak's judgment.

           

            Judgment given on January 10, 1989.

            HCJ 652/81

         

M.K. YOSSI SARID

v.

CHAIRMAN OF THE KNESSET, MENACHEM SAVIDOR

         

 

The Supreme Court Sitting as the High Court of Justice

[March 1, 1982]

Before Ben-Porat, Barak and D. Levin JJ.

 

 

Editor's synopsis -

          On December 1, 1981, the Alignment group in the Knesset submitted a motion of no confidence in the government. The Knesset Chairman (Speaker) set the following day, December 2, as the time for the debate and vote on the motion, and fixed the time for the opening of the session at 5 p.m. The Petitioner seeks an order nisi against the Chairman to show cause why he should not convene the Knesset session at its regular hour, 11 a.m. He contends that this is the hour at which Knesset sessions have always begun and that the Chairman fixed the time for this session at a later hour, in violation of the Knesset regulations, in order to enable supporters of the government to return from overseas in time to vote against the motion. The Chairman contends that he fixed the hour as he did for other proper reasons. The court denied the petition, holding:

         

1.      The Chairman of the Knesset is one of the organs of State. In deciding to alter the time of the Knesset session, he fulfills a public function pursuant to Law- the Knesset regulations -which is subject to judicial review.

 

2.      The heterogeneity of the various Knesset functions yields similar heterogeneity with respect to the scope of judicial review of its functions.

 

3.      In determining the scope of judicial review of internal Knesset affairs that are concerned with the political relations between the Knesset and the government, two contradictory considerations clash. One is the preservation of the rule of Law, which applies to the Knesset as well as to other arms of the state. The other is the respect that must be shown for the separation of powers. Decisions of the Knesset concerning the political relations between it and the government are politically volatile and it is appropriate that the court stay its hand as much as possible in these matters so as to avoid politicization of the judiciary.

 

4.      The desired balance between these considerations will be assured by adopting a test for judicial review which takes into account the extent of the violation claimed. When such violation is minor and does not affect the basic structure of our parliamentary system, the independence of the Knesset should prevail and the court will stay its hand. But when the violation is substantial and infringes upon basic values of our legal order, the need to ensure the rule of Law is dominant.

 

5.      In this case, even if the Chairman deviated from the Knesset regulations, this was a minor deviation which should be resolved by internal parliamentary processes.

 

 Israel cases referred to:

[1] H.C 222/68, "Huggim Leumi'im" Society v. Minister of Police 24P.D.(2)141.

[2] H.C. 306/81, Flato Sharon v. Knesset Committee 25P.D.(4)118.

[3] C.A. 228/63, Azuz v. Azar 17P.D.2541.

[4] H.C. 188/63, Batzul v. Minister of Interior 19P.D.(1)337.

[5] H.C. 108/70, Manor v. Minister of Finance 24P.D.(2)442.

[6] H.C. 98/69, Bergman v. Minister of Finance 23P.D.(1)693; S.J. Vol. VIII, supra p. 13.

[7] H.C. 246/81, "Agudat Derekh Eretz" v. Broadcast Authority 35P.D.(4)1; S.J. Vol. VIII, supra p. 21.

[8] H.C. 563, 566/75, Ressler v. Minister of Finance; Zivoni v. Chairman of Knesset Finance Committee 30P. D. (2)337.

[9] H.C. 637/79, Yitzhak v. Minister of Agriculture 34P.D.(2)442.

[10] H.C. 248/80, Cohen v. Knesset Chairman 34P.D.(4)813.

[11] H.C. 217/80, Segal v. Minister of the Interior 34 P.D.(4) 429.

[12] H.C. 65/51, Jabotinsky v. President of the State of Israel 5P.D.801; 4P.E.399.

 

American cases referred to:

[13] Baker v. Carr  369 U.S. 186 (1961).

[14] Joint Anti-Fascist Committee v. McGrath 341 U.S. 123 (1951).

[15] Powell v. McCormack 395 U.S. 486 (1969).

[16] Poe v. Ullman 367 U.S. 497 (1961).

 

A. Ginossar, M. Shachal, A. Lorch for the Petitioner.

D. Beinish, Director of the High Court Department in the State Attorney's Office, for the Respondent.

 

JUDGMENT

 

            BARAK J.: On Tuesday, December 1, 1981, at 11:40 a.m., the Alignment faction submitted a motion of no-confidence in the Government. The Chairman of the Knesset decided that the no-confidence motion would be debated on Wednesday, December 1, 1981, and that the sitting would convene at 5:00 p.m. Knesset Member Yossi Sarid petitioned the court against the scheduling of the sitting in the afternoon hours. He argued that under rule 36(a) of the Knesset Rules, a motion of no-confidence is required to be debated "at the next regular sitting", and that sitting had long since been scheduled for Wednesday at 11.00 a.m. The Petitioner contended that the delay in opening the sitting was designed to allow several Knesset members, who support the Government, to return to the country in time for the vote, and that this consideration, which motivated the Chairman of the Knesset, is not legitimate, since the Chairman thus became "an instrument in the hands of the Government". The Petitioner did point out that the reason given by the Chairman for his decision was that a memorial for the late David Ben Gurion would be held on Wednesday, but the Petitioner claimed that this reason was not genuine.

 

            2. The petition was brought before a judge of this court on Tuesday evening, who referred it to a panel of three judges for hearing on Wednesday morning, while also summoning a representative of the Attorney-General to appear. On Wednesday there appeared before us the Petitioner and his counsel, and also Ms. Beinish, on behalf of the Attorney-General. Due to the urgency of the matter Ms. Beinish did not have time to prepare an affidavit. In her opening remarks she submitted that the petition should be dismissed as non-justiciable. In regard to the facts, we were told, on behalf of the Chairman of the Knesset, that the change in the scheduling of the sitting on Wednesday from eleven a.m. to five p.m. was made by the Chairman by virtue of his authority under rule 27(c) of the Knesset Rules, according to which "the Chairman of the Knesset may change the scheduled time of a sitting". The primary reason for the change was the memorial for the late Mr. Ben Gurion. Nonetheless, there was also an additional reason, namely, that because of the Prime Minister's illness, and in view of the nature of the matter. the Government's reply to the no-confidence motion was to be given by the Minister of Defence, who was in the United States, and would be returning to Israel at the earliest for the afternoon sitting.

           

            3. A factual dispute arose therefore, as regards the considerations of the Chairman of the Knesset. This dispute could not be resolved at that stage, since Ms. Beinish's statements with respect to the Chairman's considerations were delivered orally and were not supported by an affidavit. In these circumstances, counsel for the Petitioner declared that he would accept Ms. Beinish's factual declarations as if they had been made by affidavit. He contended that even on these facts the Chairman's decision was invalid, since according to Rule 36(a) of the Knesset Rules - and this specific provision prevails over the provision in Rule 27(c) - the Chairman should have scheduled the sitting for 11:00 a.m. According to this reasoning, the only way to change the opening time of a regular sitting is by resolution of the Knesset Committee under Rule 148, which provides that "the Knesset shall not deal with any matter in a manner contrary to the Rules, or to precedents, unless the Knesset Committee has considered the matter, and decided thereon". The difficulty is that the Knesset Committee before which the matter was brought, "refused to intervene in the Chairman's decision on the ground that the matter fell within the scope of his authority, and the Committee should not deal with it". As against these arguments, Ms. Beinish submitted that the Chairman's decision was made lawfully, within the scope of his authority under section 27(c) of the Rules, and on the basis of material considerations. Ms. Beinish concentrated in the main on the argument that the decision of the Chairman was not justiciable and that the court, therefore, should not hear the petition on its merits. She contended that the working procedures of the Knesset were non-justiciable, since they fell within the sovereign power of the Knesset, and were of a clearly political character. Mr. Shachal, counsel for the Petitioner, argued in reply that the Chairman's decision was based on the law and is of a purely administrative nature, so that it is subject to review by this court. Such review, he argued, is important to ensure that the Knesset Chairman observes the law.

 

            4. The question now crisply arises whether it is proper for the High Court of Justice to entertain a petition concerning the authority of the Knesset Chairman in regard to Knesset working procedures. I said, "whether it is proper" to entertain the petition, because the question posed to us is not one of jurisdiction, but one of discretion (see H.C. 222/68 [1]). This court's authority to hear the petition stems from section 7(b)(2) of the Courts Law, 1957, under which the High Court of Justice is empowered to issue orders to state authorities which "exercise any public functions by virtue of law". The Knesset Chairman is a state authority, and in deciding to change the time of the sitting he exercised a public function by virtue of "law"-that is, the Knesset Rules, which were adopted by the Knesset under section 19 of the Basic Law: The Knesset (see also the definition of "law" in section 1 of the Interpretation Ordinance [New Version]). Indeed, the provisions of the Rules relating to the working procedures of the Knesset form part of the constitutional law practised in the state (see A. Lechovski, "On the Working Procedures of the Knesset" in Legal Studies in Memory of Rosenthal (ed. Tedeschi, Magnes, 1964) 380). We, therefore, are empowered to hear the petition (see H.C. 306/81 [2]). The question still remains, however, whether we should hear the petition on its merits, in light of the special character of the Chairman's decision which concerns "internal parliamentary proceedings" (in the words of Shamgar J., ibid, at 142).

           

            5. The Knesset is "the house of representatives of the State", and it is required to perform many varied functions. It enacts the Basic Laws and the ordinary Laws; it sometimes participates - in the plenum or in the various committees - in the process of subsidiary legislation; it supervises the actions of the Government, which holds office for as long as it enjoys the confidence of the Knesset, by means of a parliamentary question, motion of no-confidence and similar motions; it fulfills, in the plenum or in committees, several quasi-judicial functions, such as deciding on election appeals, withdrawing immunity and, in special cases, suspending a Knesset member, or removing him from office (see A. Rubinstein, The Constitutional Law of the State of Israel (3d ed., Schocken, 1981) 81, 291, 196; C. Klein, "On the Legal Definition of the Parliamentary Regime and Israeli Parliamentarism" 5 Mishpatim (1974) 308). This variety of Knesset functions correspondingly varies the scope of the court's judicial review of the manner in which the Knesset performs its duties, in the plenum and in committees, and through other functionaries. Indeed, the scope of judicial review of the Knesset's actions and decisions cannot be exhausted in a simple formula, but often varies according to the nature of the function under review. Take, for instance, the Knesset's legislative function. While a statute is not generally subject to review as to the legality of its content (C.A. 228/63 [3]; H.C. 188/63 [4]; H.C. 108/70 [5]), this court has reviewed the legality of a statute with regard to an entrenched provision in a Basic Law (H.C. 98/69 [6]; H.C. 260,246/ 81 [7]). It is true that in so doing, the court left the question of its power to act in this way open for further consideration, but the very hearing and decision are in themselves

 

            ... at least some intimation of this court's approach to the question of the boundaries of its constitutional powers. Had the court believed that the separation of powers forbade it from deal in any way with a petition concerning the Knesset and its committees, it would have raised that question on its own initiative. In other words, the court's readiness to explore the issue on its merits has, in itself, implications as to the interpretation of the powers of the different state authorities.

(per Shamgar J. in H.C. 306/81 [2] at 141.).

 

            Against this limited review of the legislative process there stands the court's ordinary review of quasi-judicial decisions of the Knesset and its committees, such as the removal from office of a Knesset member or his suspension (ibid.). Likewise, judicial review is exercised over decisions of the Knesset - in the plenum, or in committees, or by other organs of the Knesset - relating to subsidiary legislation, or which are of an administrative nature concerning, for example, party funding (see H.C. 563, 566/75 [8]; H.C. 637/79 [9]; H.C. 248/ 80 [10]). In summary, all that can be said, by way of generalization regarding judicial review of decisions of the Knesset, is that the scope of this review differs according to the nature of the decision reviewed. A "legislative" decision is different from a "quasi-judicial" decision, and both of these differ from a decision relating to the Knesset's supervision of Government actions.

           

            6. The petition before us concerns a decision of the Knesset Chairman relating to the working agenda of the Knesset, in regard to the control exercised by the Knesset over the Government by means of the vote of no-confidence. What is the scope of the judicial review of such decisions of the Chairman? These decisions are not embodied in a statute, nor are they even judicial decisions, or decisions made in the frame of subsidiary legislation. We are dealing here with a decision of an administrative character, taken in the course of intra-parliamentary proceedings concerning the reciprocal political relationship between the Knesset and the Government. Is a decision of this kind subject to judicial review?

           

            7. This question is by no means simple, since its solution involves a conflict between two opposing considerations. On the one hand there is the principle of the rule of law which means, in its formal sense, that all the organs of the state must obey the law. The principle of the rule of law is addressed to both individuals and governmental organs, and applies to the legislature itself, in the sense of "the rule of law in the legislature" (in the words of Silberg J. in his book Principia Talmudica (2nd ed., Hebrew University Law Faculty Publications, 1964) 70). If, therefore, the Knesset Rules contain provisions governing the conduct of the internal proceedings of the House, by the different Knesset authorities, these authorities must act in accord with the Rules. Just as this court exercises its jurisdiction in any case of failure to obey the law by the governmental authority, so too must it act in regard to a failure to implement the provisions of the Rules concerning the administration of the House, for were that not so, we might find the legislature itself in violation of the law. The provisions of the Rules express the law regarded by the Knesset as appropriate for the conduct of its parliamentary life, and for allowing its members to fulfill their political mission. Breach of the Rules frustrates these objectives, and judicial review is essential to prevent such a result, for where there is no judge there is no law, and where the court fails to intervene, the principle of the rule of law is violated (H.C. 217/80 [11] at p. 441). On the other hand, there is the principle that the working rules of the legislature are its own internal affair and, on the basis of the separation of powers, belong to the legislative authority itself, which also has the tools to examine itself and to scrutinize its own decisions. It is proper, therefore, that the judiciary respect the internal affairs of the legislature, and refrain from interfering in them. Moreover, decisions of the Knesset with respect to its reciprocal relations with the Government are usually heavily laden with political content from which the judiciary should properly distance itself so as to prevent, as far as possible, the "politicization of the judicial process" (in the words of Witkon J. in Politics and Law (The Hebrew University of Jerusalem, 1965) 58). It follows that -

           

            Paramount considerations relating to the separation of powers, the independence of parliament and the mutual respect which should prevail between state authorities, require that the Knesset enjoy freedom of action in managing its proceedings as it deems fit, without having its acts scrutinized by outside authorities. Were the court to sit in judgment over the propriety of Knesset proceedings, this body would be unable to function properly, and the court too will be flooded with litigation that turns it into a perpetual arena of political and procedural conflicts.

(Y.S. Zemach, "The Problem of Non Justiciability in Parliamentary Proceedings" 3 Iyunei Mishpat (1973) 752, 753.)

 

            Indeed, the need to respect the status of the legislature, on the one hand and, on the other hand, to protect the judiciary, justify judicial restraint and refrainder from reviewing the administration of the legislature, as regards its reciprocal relations with the Government.

 

          8. These opposing considerations are of great weight, and we should properly take them into account. It appears to me, therefore, that there is no room to lay down a comprehensive rule as to the scope of the court's intervention in the working procedures of the Knesset. Indeed, the accepted approach in England, that parliamentary proceedings are excluded from the range of judicial review, has not been adopted in Israel, and this court has held that

         

          there is no reason why this court should not exercise its power as against a Knesset decision taken in violation of the law or the principles of natural justice (save in cases where the matter dealt with by the Knesset is non-justiciable).

(Per Kahan D.P. in H.C. 306/81 [2], at 132).

 

          However, that ruling concerned a quasi-judicial decision, whereas we are concerned with a decision that is not quasi-judicial, but an administrative one, concerning intra-parliamentary affairs. True, the decision of the Knesset Chairman to delay the time of the sitting until the afternoon is justiciable in the sense that its legality can be judged by legal standards, but that, alone, does not exhaust the principle of non-justiciability, which also addresses the reciprocal relations and mutual respect owed by the legislature and the judiciary to one another (see Baker v. Carr [13]).

         

          9. It seems to me that these opposing considerations of the rule of law, on the one hand, and respect for the Knesset's special standing on the other hand, require a judicial balance, which is based on restraint, yet does not yield to complete impotence. This self-restraint must be based on a standard which will define those areas in which the court will not interfere out of respect for the uniqueness of the Knesset as the people's elected body, and those in which the court will intervene to preserve the rule of law in the legislature. The determination of this standard is a difficult task that requires use of that "expert feel of lawyers" referred to by Justice Frankfurter in Joint Anti-Fascist Committee v. McGrath [14], and in which Smoira P. found "an excellent definition of the limits of judicial power" (H.C. 65/51 [12]). In my opinion, the proper balance between the need to secure "the rule of law in the legislature" and the need to respect the special standing of the Knesset in its decisions concerning its internal affairs, will be assured if we adopt a standard that takes into account the degree of the apprehended harm to the fabric of parliamentary life, and the extent of its influence on the fundamental structure of our constitutional regime. When the alleged violation of the intra-parliamentary process is minor, and would not affect the foundations of our parliamentary regime, the consideration of the independence and uniqueness of the Knesset outweighs that of the rule of law, and the judiciary would be justified in refraining from hearing a matter that is essentially political. The matter would be different when the violation complained of is manifest, and impairs substantive values of our constitutional regime. In such circumstances, the need to secure the rule of law prevails over all other considerations, much as that need prevails where we are concerned with a violation of the right of a Knesset member as an individual in a quasi-judicial proceeding (see H.C. 306/81 [2], and also Powell v. McCormack [15](1969)). In determining the proper standard, taking into account the degree of harm and the interest affected, we commend a flexible criterion which, by its very nature defies exact definition, and the content and scope of which will be determined by the court according to the needs of the time, and the matter involved (cf. Poe v. Ullman [16] at 509).

 

            10. In view of these standards, it appears to us in the instant matter that even if the Knesset Chairman departed from the provisions of the Rules - and in this respect we are not expressing any opinion on the merits - it was of minor significance and must be resolved through the intraparliamentary process itself. We do not have before us any substantial violation, such as might have occurred if the possibility of the no-confidence vote in the Government had been entirely precluded or seriously jeopardized which would have justified our intervention. Grievances of the kind raised in this petition ought properly be resolved in the house of representatives itself, through the frame of its own institutions, as part of its internal administration. This petition does not warrant our intervention.

           

            For these reasons we dismissed the petition on December 2, 1981.

           

            Judgment given on March 1, 1982.

HC 3267/97

HC 715/98

1.  Amnon  Rubinstein       

2.  Chaim Oron

3.  Barak Katz

4.  Yossi Nechushtan

5.  Baruch Olshak

6.  Alon Porat

7.  Ilan Freedman                                                      HC 3267/97   

 

 

1.   Major (Res.) Yehuda Ressler

2.  New Student Association of Tel-Aviv University

3.  15,604 Students of Israeli Institutes of Higher Education

4.  1,100 Students of Israeli High Schools   

5.  Major (Res.) Ehud Peleg                                     HC 715/98     

 

v.

Minister of Defense

The Supreme Court Sitting as the High Court of Justice

[December 9, 1998]

President A. Barak, Deputy President S. Levin, Justices T. Or,
E. Mazza, M. Cheshin, I. Zamir, T. Strasberg-Cohen, D. Dorner, J. Türkel, D. Beinisch, I. Englard

Petition to the Supreme Court Sitting as the High Court of Justice

 

Facts: The petitioners, Members of Knesset, reserve military officers, and student organizations, challenged a practice in which the Minister of Defense routinely grants deferrals of and exemptions from required military service to ultra-Orthodox Jewish Yeshiva students who engage in full-time religious study. They claim the exemptions, granted to an ever-growing percentage of enlistment candidates (8% in the year 1997), violate the principle of equality, exceed the zone of reasonableness, and are disproportionate.  They further claim that the Minister of Defense lacks the authority to regulate the matter, and that it must be done so via legislation.

 

Held:  The Knesset, not the executive branch, has the authority to make fundamental decisions on fundamental issues that divide society. The routine granting of exemptions and deferrals to a large group of people is such a decision; it is a primary arrangement that must be addressed through primary legislation, not administrative regulations. Although the Court has upheld the administrative arrangement in the past, relying on a statutory provision authorizing the Defense Minister to grant exemptions "for other reasons," the growing number of students covered by the exemption has pushed it beyond his authority.. At a certain point, quantity becomes quality. The Defense Minister's current practice of granting deferrals and exemptions is invalid. The Court's declaration of invalidity will take effect 12 months from the date of the decision, in order to give the Knesset time to address the matter.

 

Israeli Supreme Court Cases Cited

  

[1]     HC 910/98 Ressler v. Defense Minister, 42(2) IsrSC 441.

[2]     HC 337/81 Miterani v. Minister of Transportation, 37(3) IsrSC 337.

[3]     HC 266/68 Petach Tikvah Municipality v. Minister of Agriculture, 22(2) IsrSC 824.

[4]     CA 524/88 “Pri Ha’Emek” Cooperative Agricultural Society Ltd. v. Sdeh Ya’akov Workers’ Village of Hapoel Mizrachi, Agricultural Cooperative Settlement, 45(4) IsrSC 529. 

[5]     HC 2740/96 Shansi v. Diamond Comptroller 51(4) IsrSC 491.

[6]     HC 5016/96 Horev v. Minister of Transportation, 51(4) IsrSC 1{[1997] IsrL 149}.

[7]     CrimA 53/54 Eshed, Temporary Transportation Center v. Attorney General, 8 IsrSC 785.

[8]     HC 3806/93 Manning v. Minister of Justice, 47(3) IsrSC 420.

[9]     CA 825/88 Association of Israeli Soccer Players v. Israeli Soccer Association, 45(5) IsrSC 89.

[10]   HC 144/50 Sheave v. Defense Minister, 5 IsrSC 399.

[11]   HC 113/52 Zachs v. Minister of Trade and Industry, 6 IsrSC 696.

[12]   HC 7351/95 Nevuani v. Minister of Religious Affairs, 50(4) IsrSC 89.

[13]   HC 2994/90 Poraz v. Government of Israel, 44 (3) IsrSC317.

[14]   HC 98/54 Lazarovitz v. Food Supervisor of Jerusalem, 10 IsrSC 40.

[15]   HC 3872/93 Mitral Ltd. v. Prime Minister and Minister of Religious Affairs, 47(5) IsrSC 485.

[16]   CA 6821/93 United Bank Hamizrachi Ltd. v. Migdal Cooperative Village, 49(4) IsrSC 221.

[17]   HC 693/91 Efrat v. Director of Population Registrar of the Ministry of the Interior, 47(1) IsrSC 749.

[18]   HC 953/87 Poraz v. Mayor of Tel Aviv-Jaffa, 42(2) IsrSC 309.

[19]   HC 122/54 Aksel v. Mayor, Councilors and Residents of the Municipality of Netanya, 8  IsrSC 1524.

[20]   HC 200/57 Bronstein v. Beit Shemesh Local Council, 12 IsrSC 264. 

[21]   HC 124/70 Shemesh v. Companies Registrar, 25(1) IsrSC 505.

[22]   HC 144/72 Halipi v. Minister of Justice, 27(1) IsrSC 719.

[23]   HC 333/85 Aviel v. Minister of Labor and Welfare, 45(4) IsrSC 581.

[24]   CA 723/74 “Ha’aretz” Newspaper Publishing Co. v. Israel Electric Co., 31(3) IsrSC 281.

[25]   FH 9/77 Israel Electric Co. v. “Ha’aretz” Newspaper Publishing Co., 32(2) IsrSC 337.

[26]   HC 301/63 Streit v. Israeli Chief Rabbinate, 18(1) IsrSC 598.

[27]   HC 249/64 Baruch v. Customs and Duty Supervisor, 19(1) IsrSC 486.

[28]   HC 3914/92 Lev v. Tel-Aviv-Jaffa Regional Rabbinical Court, 48(2) IsrSC 491.

[29]   HC 453/94 Israeli Women’s Network v. Government of Israel, 48(5) IsrSC 501.

[30]   HC 5394/92 Hopert v. “Yad Vashem," Holocaust Memorial Authority, 48(3) IsrSC 353.

[31]   HC 726/94 Klal Insurance Company v. Finance Minister, 48(5) IsrSC 441.

[32]   HC 1255/94 “Bezeq," Israeli Communications Company v. Communications Minister, 49(3) IsrSC 661.

[33]   HC 5319/97 Cogan v. Military Attorney General, 51(5) IsrSC 67.

[34]   HC 1064/94 Computest Rishon LeTzion (1986) Ltd. v. Transport Minister, 49(4) IsrSC 808.

[35]   CA 239/92 “Egged” Transportation Cooperative Society v. Mashiach, 48(2) IsrSC 66.

[36]   HC 4541/94 Miller v. Defense Minister, 49(4) IsrSC 94.

[37]   CrimApp 537/95 Ganimat v. State of Israel, 49 (3) IsrSC 355.

[38]   HC 4562/92 Zandberg v. Broadcasting Authority, 50(2) IsrSC 793.

[39]   HC 7111/95 Center of Local Government v. Speaker of Knesset, 50(3) IsrSC485.

[40]   HC 3434/96 Hopfnung v. Speaker of Knesset, 50(3) IsrSC 57.

[41]   HC 5503/94 Segal v. Speaker of Knesset, 51(4) IsrSC 529.

[42]   HC 450/97 Tenufa Manpower and Maintenance Services, Ltd. v. Minister of Labor and Welfare, 52 (2) IsrSC 433.

[43]   FH 2/82 Ressler v. Defense Minister, 36(1) IsrSC 708.

[44]   HC 98/69 Bergman v. Finance Minister, 23(1) IsrSC 693.

[45]   HC 114/78 Borkan v. Finance Minister, 32(2) IsrSC 800.

[46]   EA 2/88 Ben-Shalom v. Central Elections Committee for the Twelfth Knesset, 43(4) IsrSC 221. 

[47]   HC 153/87 Shakdiel v. Minister of Religious Affairs, 42(2) IsrSC 221.

[48]   HC 355/79 Katalan v. Prison Authority, 34(3) IsrSC 294.

[49]   HC 1715/97 Investment Managers’ Bureau v. Finance Minister, 51(4) 367.

[50]   HC 40/70 Becker v. Defense Minister, 24(1) IsrSC 238.

[51]   HC 448/81 Ressler v. Defense Minister, 36(1) IsrSC 81.

[52]   HC 179/82 Ressler v. Defense Minister, 36(4) IsrSC 421.

[53]   LCrim 1127/93 State of Israel v. Klein, 48(3) IsrSC 485.

American Cases Cited

[54]   Mistretta v. United States, 488 U.S. 361 (1989).

[55]   Industrial Union Dept. v.  American Petrol Inst., 448 U.S. 607 (1980).

[56]   Rapp v. Carey, 44 N.Y. 2d 157 (1976).

[57]   United States v. Robel, 389 U.S. 258 (1967).

[58]   American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490 (1981).

[59]   Myers v. United States, 272 U.S. 52 (1926).

[60]   Kent v. Dulles,  357 U.S. 116 (1958).

[61]   Shuttlesworth v. Birmingham, 394 U.S. 147 (1969).

[62]   Wayman v. Southard, 23 U.S. 1 (1825)..

[63]   Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936).

International Cases Cited

[64]   The Sunday Times  v. The United Kingdom (1979) 2 E.H.R.R. 245.

[65]   Malone v. United Kingdom (1984) 7 E.H.R.R. 14. 

[66]   Leander v. Sweden (1987) 9 E.H.R.R. 433.

German Cases Cited

[67]   8 BVerfGE 274 (1958).

[68]   33 BVerfGE 125 (1972).

[69]   34 BVerfGE 52 (1972).

[70]  49 BVerfGE 39 (1978).

Canadian Cases Cited

[71]   Irwin Toy Ltd. v. Quebec [1989] 1 S.C.R. 927.

Israeli Books Cited

[72]   2 A. Rubinstein, Hamishpat Haconstitutzioni shel Midinat Yisrael [Israeli Constitutional Law] (5th ed. 1996). 

[73]   1 B. Bracha  Mishpat Minhali [Administrative Law] (1987).  

[74]   1 I. Zamir, Hasamchut Haminhalit [Administrative Power] (1996).

[75]   Y. Dotan Hanchayot Minhaliot [Administrative Guidelines] (1996).

[76]   2 A. Barak, Parshanut Bimishpat [Interpretation in Law] (1993).

 [77]  1 B. Aktzin, Torat Hamishtarim [Theories of Government[ (2 ed. 1968).

 

Israeli Articles Cited

[78]   I. Zamir, Chakika Minhalit: Michir Hayieelut [Administrative Legislation: Price of Efficiency], 4 Mishpatim 63 (1973).

[79]   Y.H. Klinghoffer, Shilton Hachok Vichakikat Mishneh [Rule of Law and Administrative Regulations], in Sefer Klinghoffer al Hamishpat Hatzibori 105 (I. Zamir ed., 1993).

[80]   B. Bracha, Chakikat Mishneh [Administrative Regulations], 1 Mishpat U’Mimshal 411 (1993).

[81]   B. Bracha, Likrat Pikuach Parliamentary al Chakikat Mishneh [Parliamentary Supervision of Administrative Regulations], 7 Iyunei Mishpat 390 (1979-1980).

[82]   A. Barak, Pikuah Batei Hamishpat al Tichikat Mishneh [Judicial Supervision Administrative Regulations], 21 Hapraklit  (1965) 463.

[83]   C. Klein, Al Hahagdara Hamishpatit shel Hamishtar Haparliamentary vi’al Haparliamentarism Hayisraeli [Legal Definition of Parliamentary Regime], 5 Mishpatim 308 (1973-1974).

[84]   I. Zamir, Hanchayot Hayoetz Hamishpati Lamemshala – Chakikat Mishneh, Nohel Vihanchaya [Attorney General Guidelines], 11 Iyunei Mishpat 339 (1986-1987).

[85]   A. Barak, “Subordinate Legislation” 16 Scripta Hierosolymitana  (1966) 219.

[86]   F. Raday, Chukatizatzia shel Dinei Haavodah [Constitutionalization of Labor Law], 4 Shnaton Mishpat Haavodah 151 (1994).

[87]   R. Ben-Israel, Hashlachot Chukei Hayesod al Mishpat Haavodah Vimaarechet Yachasei Haavodah [Implications of Basic Laws for Labor Law], 4 Shnaton Mishpat Haavodah 27 (1994). 

[88]   A. Yuran, Hamahapacha Hachukatit Bimisoi Biyisrael [Constitutional Revolution of Tax], 23 Mishpatim 55 (1994).

[89]   A. Barak, Hakonstitutzionilazatzia shel Maarechet Hamishpat Biakvut Chukei Hayesod Vihashlachoteha al Hamishpat Haplili [Constitutionalization of the Legal System – Criminal Law], 13 Mechkarei Mishpat 5 (1996-1997).

Foreign Books Cited

[90]   B. Schwartz, Administrative Law (3rd ed. 1991).

[91]   D.P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (2d ed. 1997).

[92]   D. Schoenbrod, Power Without Responsibility (1993).

[93]   L.H. Tribe, American Constitutional Law (2d ed. 1988)

[94]   D.P. Currie, The Constitution of the Federal Republic of Germany (1994).

[95]   P.W. Hogg, Constitutional Law of Canada (3rd ed. 1992).

[96]   A.C. Aman and W.T. Mayton, Administrative Law (1993).

 

Foreign Articles Cited

[97]   U. Kischel, Delegation of Legislative Power to Agencies: A Comparative Analysis of United States and German Law, 46 Admin. L. Rev. 213 (1994).

 

Miscellaneous

[98]   Standing Committee’s Report for Renewed Examination of Enlistment Exemption for Yeshiva Students (1988).

[99]   State Comptroller, 39th Annual Report – 1988 and Accounts for Fiscal Year of 1987 (1989).

[100]    State Comptroller, 48th Annual Report – 1997 and Accounts for Fiscal Year of  1996 (1998).

 

Jewish Law Sources Cited

[a]  Tractate Sabbath, 132:1.

[b]  Jerusalem Talmud, Tractate Yoma, 8:5.

 

 

JUDGMENT

President A. Barak

This court examined the deferral of military service for Yeshiva [religious seminary – ed.] students for whom “Torah is their calling” [who engage in full-time religious study – trans.] in HC 910/86 Ressler v. Minister of Defense (hereinafter- Ressler [1]). According to the statistics presented to the Court in Ressler [1] of those who enlisted in the I.D.F. in 1987, 1,674 Yeshiva students had their military service deferred (constituting 5.4% of the total). The total number of students included in the arrangement for the deferral of military service in that year was 17,017. Against this backdrop Ressler [1] held that the Minister of Defense was authorized to defer the drafting of Yeshiva students and that his exercise of discretion to that effect was within the zone of reasonableness.  In my opinion in that case, I stated:

... ultimately, the number of Yeshiva students who receive deferrals is significant. There is a limit, which no reasonable Minister of Defense is authorized to exceed. Quantity becomes quality.

Id. at 505.

 

Ten years have passed since that case was decided. The number of Yeshiva students included in the deferral of service arrangement has risen constantly.  According to the statistics presented to us, in 1997, about 8% of all the enlistees eligible for service were granted a deferral, based on their being full-time Yeshiva students.  The total number of Yeshiva students included in the arrangement that year was 28,772 (as of August 1997). The arrangement’s social ramifications are of gargantuan proportions. Indeed, increasingly, feelings of inequality are tearing the fabric of Israeli society. Moreover, some of the Yeshiva students being granted deferrals – namely, those who cannot successfully adjust to the full-time study of Torah – find themselves in an untenable predicament; they do not study for they are unsuited for it; they do not work, for fear of exposing their failure to meet the conditions of the arrangement. The result is an ongoing breach of the law, inhibited personal growth and harm to the work force. The issue before us today is whether or not these and other ramifications cross the line beyond which “quantity becomes quality." Does the complex situation in which Israeli society finds itself mean that this entire issue can no longer be regulated via the service deferral granted by the Minister of Defense? Does the situation presented before us today not warrant the conclusion that this entire matter ought to be resolved by Knesset legislation, capable of addressing the problem in all its complexity? These are the painstaking questions with which we are confronted today.  

The Facts

1.    The history of granting deferral of military service to full-time Yeshiva students (students for whom “Torah is their calling”) is in truth the history of the State of Israel itself. We dwelt upon this in Ressler [1] at 449-51. It was the first Defense Minister, Mr. David Ben-Gurion, who ordered that the enlistment of full-time Yeshiva students be deferred.  At the time, there was a fixed quota of Yeshiva students whose service was deferred, not exceeding about four hundred (400) Yeshiva students a year. This was the number of deferrals granted until 1970. From that year onwards the arrangement was altered to remove the limitation on the number of deferrals that could be granted. Hence, the number of Yeshiva students granted deferrals increased. In 1975, a yearly quota of 800 was established for the number of Yeshiva students who would obtain service deferral. Following the coalition agreement of 1977, the quota was abolished altogether, increasing the number of potential service deferrers.  These deferrers came to include the newly penitent, teachers in the independent educational system, and graduates of religious technical schools.  The conditions for authorizing a deferral were similarly relaxed, as were the requirements which the deferrers had to meet. For example, Yeshiva students over the age of thirty were allowed to give lessons in Judaic studies and receive modest scholarships in consideration thereof. It would seem that at that time there was also a change in the rationale underlying the arrangement. The arrangement originated as a result of the destruction of the European Yeshivas during the Holocaust and the desire to avoid having to close Yeshivas in Israel pursuant to the enlistment of their students. Today, this reasoning no longer holds.  Israeli Yeshivas are thriving and there is no real danger that drafting Yeshiva students within any particular framework would lead to the disappearance of these institutions. The arrangement today is, on the one hand, based on the desire to enable Yeshiva students to continue studying, while on the other hand, there is the perception that the effectiveness of these students’ military service is questionable, due to the difficulties they would encounter in adjusting to the Military and the difficulties that the Military would have adjusting to them.

2.    The arrangement introduced by David Ben-Gurion and adopted by all subsequent defense ministers, sparked broad public controversy.  The Knesset debated it on a number of occasions. See Ressler [1] at 450. In effect, numerous efforts were made to petition the Supreme Court with regard to this matter. Id. at 453. These efforts failed, given the Supreme Court’s original view that the petitioners had no legal standing and that the issue itself was non-justiciable. The Supreme Court subsequently changed its position in Ressler [1] noting that the petitioner had standing before the Court and that his petition was in fact justiciable (both normatively and institutionally). Regarding the petition itself, the Court held that the deferral of military service for full-time Yeshiva students was within the Defense Minister’s authority and did not exceed the zone of reasonableness.  Even so, it held that “if the number of those whose service is deferred due to Torah studies continues to increase, to the extent of it comprising a significant portion of candidates for military service, thereby harming Israel’s security, there will definitely come a point at which we will say that the decision to defer enlistment is unreasonable and must be struck down.” Ressler [1] at 512. The Court emphasized that the Defense Minister’s discretion was ongoing, as was the obligation to exercise it. President Shamgar stressed this point, noting:

…this matter cannot be examined exclusively on the basis of its external manifestation, in light of its development since the establishment of the State to the present time; it must equally be examined according to its ongoing nature, its impact and its attendant consequences, year in and year out, for the foreseeable future. This means that our ruling today regarding the arrangement’s legality, after subjecting this arrangement to the relevant judicial review for the first time, does not exempt the Executive Branch from the obligation of periodically examining and reexamining the implications of granting exemptions to growing numbers of men of military age ... thus, we are not speaking of fixed data but rather of facts that change from one year to the next.  This means that the empowered authority is obliged annually to reassess the data and to consider its connection with other background factors.

Id. at 524-25.

 

3.    Public discussion of the issue of deferring the enlistment of full-time Yeshiva students persisted after the Ressler [1] case was decided. Immediately thereafter (August 1988), a report of the Knesset sub-committee of the Foreign Affairs and Security Committee was published.  The committee opined that the arrangement regarding the deferred enlistment of Yeshiva students must be changed by establishing frameworks which combined military service with the study of Torah. Particular attention was given to the model of the “Hesder Yeshivas” [combined religious study and military training – ed.].  It further recommended exempting 200 outstanding students from military service. The other Yeshiva students would be enlisted upon reaching the age of 24. They would undergo a short period of training and a shortened service period of one year. In the sub-committee’s view, the Knesset was obliged to adopt a definite position on the issue of service deferral for Yeshiva students. The sub-committee called upon the Defense Minister to “promptly initiate a bill for regulating the military service of Yeshiva students," in the spirit of the committee’s conclusions and recommendation. Report of the Standing Committee for the Renewed Examination of the Enlistment Exemption for Yeshiva Students [98] at 42.

4.    The State Comptroller’s Annual Report (No. 39) (1988 and Accounts for the 1987 Fiscal Year) [99] addressed the conditions for deferring Yeshiva students’ military service. The examination indicates the lack of adequate supervision as to whether the arrangement’s conditions are properly complied with. Indeed, there is no ongoing, comprehensive, and organized data regarding Yeshiva students who transfer from one Yeshiva to another, nor is there efficient monitoring regarding whether the Yeshiva students benefiting from the arrangement are not in fact engaged in other remunerative work. Furthermore, there is insufficient military enforcement of the students’ obligation to report at specific times for renewal of their service deferral. According to the report, there was no justification for leniency regarding contempt for the requirements of timely reporting for service deferral. Annual Report No. 39 [99] at 908.  The report adopted the view that the subject ought to be re-examined and “debated in the Knesset, in recognition of its immense public importance.” Id. In April of 1991, the Committee on Matters Related to the State Comptroller discussed the Report, criticizing the defects revealed in the Enlistment Board’s supervision of the maintenance of the enlistment deferral arrangement for Yeshiva students. It was the Committee's opinion that, “given the State of Israel’s critical security needs and the heavy burden born by its citizens in the area of military service, there is no justification for a situation in which tens of thousands of citizens receive prolonged deferrals of military service, the practical meaning of which, in most cases, is a total exemption from military service."

5.    On July 24th, 1992 the Defense Minister appointed a committee to examine the deferral of military service for full-time Yeshiva students.  The committee, chaired by the Defense Minister’s assistant and Director General of the Ministry of Defense, Mr. Haim Yisraeli, was asked to examine the procedures, criteria and manner of supervising the arrangement for the enlistment deferral of full-time Yeshiva students. The committee, which submitted recommendations to the Defense Minister in August of 1995, suggested methods for supervising the arrangement’s proper enforcement. Inter alia, the Yisraeli committee suggested shortening the deferral period for Yeshiva students to six months, until they reach the age of 25. This would mean that they would have to report to the enlistment bureau twice a year. It further recommended establishing a permanent formula, according to which the heads of the Yeshivas would report to the I.D.F. twice a year, in addition to a procedure for revoking recognition of those Yeshivas which fail to comply with the conditions of the arrangement. Moreover, the committee suggested improving the enforcement measures by conveying all the relevant data to the police and the State Attorney’s office, who would deal with students who violate the rules of the arrangement.

6.    In the Annual Report (No.48) (State Comptroller - 48th Annual Report for 1997 and Accounts for 1996 Fiscal Year) [100], the State Comptroller once again addressed the arrangements for enlistment deferral of Yeshiva Students into the Defense Service. At that time, the number of Yeshiva students whose enlistment had been deferred was 28,772, which constituted 7.4% of the total number of enlistees in 1996.  The report emphasized that there was no comprehensive and continuous supervision of compliance with the requirements established for full-time Torah students.  According to the State Comptroller, so long as this situation prevailed, it would be impossible to accurately establish whether there were individuals purporting to be full-time students who were in fact not studying at all, and what proportion of the deferrees they constituted. All that could be determined was that, as of March 1997, of all the Yeshiva students whose enlistment had been deferred (28,547), only 2.8% of them enlisted in the I.D.F in 1996. Furthermore, there had not been an attempt to ascertain how many full-time Yeshiva students, barred by the arrangement from working or pursuing any occupation save learning, were in fact not working or earning money.  The Report also emphasized that the Defense establishment had failed to conduct any systematic ongoing discussion regarding the steady increase of eligible enlistees who were full-time Yeshiva Students. Prior to concluding, the Report noted that “in view of the findings of the follow-up report and [Israel’s] present security needs ... the summary of the previous report has not merely retained its validity but has been bolstered ... and these findings strengthen the recommendation to conduct an in-depth inquiry into the subject of enlistment deferral for full-time Yeshiva students.” Id. [100] at 1011.

7.    The Knesset plenary discussed the enlistment deferral for full-time Yeshiva students on a number of occasions. On March 11th, 1992, the Knesset debated eight private bills proposed by members for amending the Defense Service (Amendment) Law [Consolidated Version] 1986. The bills attempted to limit the duration of the deferral that the Defense Minister was empowered to grant, as well as the number of those being granted deferrals.  There was also a bill to adopt a service framework for full-time Yeshiva students, similar to that of the Hesder students. All of these bills were stricken from the agenda. In November of 1993, the Knesset debated a bill to amend the Basic Law: The Knesset. The bill made the right to vote and be elected conditional upon having fulfilled the duty of national service, while restricting to a minimum those Yeshiva students who would be exempted from military service.  This bill, too, was stricken from the agenda.  Eight private bills were submitted before the fourteenth Knesset regarding the issue of granting deferrals to full-time Yeshiva students. The bills attempted to set quotas on the number of those whose service would be deferred, place restrictions on the duration of the deferral, and impose an obligation of full reserve duty for those whose service had been deferred. Three of these bills were stricken from the Knesset’s agenda.

The Current Situation

8.    As it now stands, deferrals of defense service are granted to full-time Yeshiva students (those for whom “Torah is their calling”). Joining this category is contingent on the enlistee having studied continuously in a Yeshiva High School, be it regular or vocational, since the age of 16. This category is also open to those who studied in a religious high school and whose matriculation exams included Talmud at the level of five units. The category of full-time Yeshiva students also includes the newly religious. The deferral is contingent on the following condition: anyone included in the category of “full-time Yeshiva student” cannot be engaged in any form of work or occupation that is ordinarily remunerative. An exception to this rule was recognized for Yeshiva students employed in a formal role as teachers in the schools of the various streams of the Ultra-Orthodox educational system; they are entitled to remuneration. The same applies to Yeshiva students over the age of 29 who teach children through the age of 13 in parochial primary schools.  The final category also includes teachers of at least 29 years of age who teach in Yeshivas for students between the ages of 13 and 17 or in Yeshivas for students 18 years and older. When the service deferral is terminated, the candidate for military duty who is a full-time Yeshiva student receives an exemption if he is at least 35 and has four children, or upon reaching the age of 41. The most recent data indicates that there are presently over 28,000 enlistees from among the service candidates of all of the years whose enlistment is currently being deferred. This data indicates a rise in the extent of the enlistment deferral.  Hence, in 1995, the number of Yeshiva students whose enlistment had been deferred stood at 26,262 - in 1996 (according to the data as of March 31st, 1997) there were 28,547 persons. In 1995 the percentage of those joining the arrangement was about 6.4% out of the entire year of enlistment candidates; in 1996 the percentage was 7.4%; and in 1997 it stood at 8% of the enlistment candidates of that year.

9.    A Yeshiva student registered for military service and included under the category of “full-time Yeshiva student," who no longer qualifies for this particular exemption, whether of his own accord or pursuant to the enlistment officer’s decision, will have the duration of his military service determined in accordance with his age and family situation. Thus, the number of those included in the arrangement is not static. During the entire year there is a constant ebb and flow of those entering and leaving the above category. Out of those born in 1973, for instance, in 1991 (when they reached enlistment age), the percentage of those included in the arrangement stood at 6%. For those born in 1973 and reaching the age of about 21 (in 1994) the number of those included in the arrangement stood at 4.8%.

10.  According to the current arrangement, the enlistment bureau commander approves the granting of full-time Yeshiva student status to those candidates who have, at one time, studied at one of the Yeshivas recognized by the Committee of Yeshivas in Israel. Acceptance is conditional on having completed the enlistment procedures and having declared oneself a “full-time Yeshiva student” who is not engaged in any work or occupation, remunerative or not, save Yeshiva studies. Thus, a candidate for defense service undertakes that if at any time during the period covered by the service deferral, any of the qualifying conditions is not fulfilled, he will immediately report to the enlistment bureau and give notice thereof. He also undertakes to notify the enlistment bureau if ever he transfers to study in another Yeshiva. In addition, the head of the Yeshiva in which the candidate is purporting to study must sign a declaration of his own on the back of the student’s declaration form (which must itself be renewed on a yearly basis) in which he undertakes to notify the secretary of the Committee for Yeshivas in Israel within thirty days if the student in question terminates his studies during the course of the year.  The secretary of the Committee for Yeshivas, for his part, must confirm that the candidate fulfills the requirements for being included in the category of “full-time Yeshiva students” and must further declare that, “if we receive notification that the aforementioned has discontinued his studies in the Yeshiva, during the course of the year, I undertake to immediately inform the commander of the enlistment bureau." The candidate for defense service receives an annual enlistment deferral. On an annual basis, he is required to renew his status and apply for an additional year of deferred service. The candidate is required to produce a valid current certification from both the head of the Yeshiva and the secretary of the Committee of Yeshivas attesting to his continued studies and must once again undertake to comply with all the requisite conditions for full-time Yeshiva students.

The Petitions

11.  Before us are two petitions. The first is the petition submitted by Member of Knesset Amnon Rubinstein, Member of Knesset Chaim Oron, and others (HC 3267/97). The second is that of Major Ressler (Res.) et al. (HC 715/98).  The first petition asks that the Defense Minister to show cause why he should not establish a maximum reasonable quota of Yeshiva students who are granted a deferral of military service. The second petition asks the Minister to show cause why he does not lack the authority to defer Yeshiva students’ enlistment into regular military service. Both petitions describe the situation regarding the deferral of service for full-time Yeshiva students in the present and the past. Both claim that the existing arrangement violates the principle of equality, deviates from the boundaries of reasonableness, and is disproportionate.  Moreover, the second petition claims that the Minister of Defense does not have the authority to regulate the matter through administrative regulations and that the entire issue ought to be regulated through legislation.

12.  In his response, the Defense Minister noted that he had re-examined the legal framework established in Ressler [1] respecting the exercise of his discretion in deferring full-time Yeshiva students’ service. He opined that the considerations that had motivated his predecessors in exercising their discretion were still valid today, highlighting the following considerations, cited in Ressler [1] which formed the basis for the Defense Minister’s response in that case:

a.  The fact that the Yeshiva students lead an ultra-Orthodox lifestyle, which makes induction into the military difficult, causing them serious problems in adapting to a society and culture, which are foreign to them, and creating difficulties in respecting strict observance of religious precepts. Thus, for example, the ultra-Orthodox do not recognize the Chief Rabbinate of Israel’s certification that food is kosher, while they themselves disagree over recognition of a number of special kosher certifications by various rabbis. Similarly, other daily practices of theirs are likely to give rise to many difficulties in the I.D.F.’s ability to integrate them.

 b. The fact that the entire effectiveness of their military service is placed into doubt, given the psychological difficulties they experience as a result of neglecting their religious studies, and given their special education and lifestyle.

 c. No one can foresee whether the enlistment of thousands of Yeshiva students, who view their enlistment in the military as a blow to the foundations of their faith, which holds that the study of Torah takes precedence over the obligation to serve in the military, will add to the I.D.F.’s fighting power or, heaven forbid, impair its ability. It is by no means certain that enlisting these individuals, even if it serves to increase the military’s power numerically, will not have far-reaching implications for the State's internal and external strength. See HC 448/81 Ressler v. Miister of Defense 36(1) IsrSC 81, 86.

 d. Respect for the spiritual and historical commitment of students and teachers engaged in full-time religious studies to uphold the value of studying Torah.

 e. The desire not to violate the stated principle which is transcendent and holy to a segment of the population in Israel and in the Diaspora.

 f.  Recognition of the deep public sensitivity toward the topic which has embroiled the Israeli public in an ideological debate and of the need for a careful balancing  with respect to a dispute of this nature.

Further on in his response, the Defense Minister noted that having considered the entirety of factors and information within the parameters determined in Ressler [1] with military interests constituting the dominant consideration, and having consulted with the Prime Minister, he had concluded that, in view of the aforementioned considerations, the existing situation did not seriously impair Israel’s security needs. In the Defense Minister’s view, absent national consensus, and in the absence of clarity over whether it would benefit national security, as noted above, the military should not take steps which are liable to have harsh consequences both on the private level and on the military’s organization.

13.  In his examination of the issue, the Defense Minister considered the question that had been raised in the first of the two petitions before us (HC 3267/97), namely, whether there should be a yearly quota limiting those permitted to enter this arrangement.  In his view, at this stage, the current arrangement did not substantially impair security needs and therefore did not need to be replaced by a yearly quota. To this effect, the Defense Minister submitted that setting a quota would, inter alia, entail the establishment of criteria for distinguishing between those worthy of being included in the arrangement and those who are not and who would therefore be drafted in the I.D.F via ordinary enlistment. In view of the considerations underlying the arrangement itself, the Minister felt that prescribing criteria of this nature would raise serious legal and social problems. This being the case, he felt that such a step should not be taken at this stage.

14.  In his response, the Minister undertook to adopt and implement the Yisraeli Commission’s recommendations. To this end, he instructed the various bodies in the Ministry of Defense and the military to work towards subjecting the arrangement to proper supervision, in order to ensure that the deferment was not improperly exploited. In this context, the Minister appointed a team for the implementation of recommendations, which would include the incorporation of the main elements of the arrangement into administrative regulations; the regulation of the undertakings of the heads of the Yeshivas to the I.D.F; submission of affidavits by Yeshiva students; establishment of criteria for recognition of Yeshivas and Adult Studies Institutions (Kollel); increasing the number of reporting dates for young students (ages 18-20) to twice a year and increasing the sanctions against those who breached the arrangement, both by indicting those in breach and by establishing a procedure for revoking the recognition of those Yeshivas failing to comply with the conditions set forth by the arrangement. The Defense Minister stated that following the regulations’ actual implementation, their influence on the number of those joining the arrangement would be reviewed. The Minister further added that the security establishment would continue to keep track of the changes in the number of those included in the arrangement and the various implications of the arrangement, thereby permitting the security establishment to weigh the matter’s influence on state security, and the potential need for establishing a maximum annual quota of those who can benefit from the arrangement.

15.  In their oral pleadings, the attorneys for the sides repeated their basic positions respectively. Adv. Fogelman, who pleaded on the Defense Minister’s behalf, emphasized that his client was chiefly concerned with security. It was in the context of outlining this point that counsel indicated how ineffective imposing military service on full-time Yeshiva students would be. This consideration had figured in the rationale originally underlying the arrangement’s institution, and it remained relevant for the newer reasons justifying the arrangement. At this juncture, Mr. Fogelman mentioned that the Prime Minister had asked that a public commission, headed by Supreme Court Justice (Ret.) Tzvi Tal, convene in order to re-examine the arrangement. Due to the reservations of certain segments of the Ultra-Orthodox community, the proposal was not implemented. We asked Mr. Fogelman whether it would have been appropriate for bodies representing the Ultra-Orthodox population to be represented before us. He responded that the Ultra-Orthodox circles, in general, and the Committee of Yeshivas in Israel, were aware that the petitions were being deliberated, and that had they wished to do so, they could have asked to join the proceedings at bar. The Court asked Mr. Fogelman to call their attention to the pending petition and he undertook to do so.

16.  In his pleadings before this Court, Adv. Har-Zahav (who pleaded on the petitioners’ behalf in HC 3267/97) emphasized that no empirical analysis had been conducted to substantiate the claim that the Yeshiva students’ military service would not be effective. He argued that the population included in the arrangement was not homogenous and that there was no reason why many of them could not serve effectively. Adv. Har-Zahav further noted that the Defense Minister’s position highlighted that the present situation did not pose any significant risk to Israel’s security needs. From this, Adv. Har-Zahav inferred that, according to the Defense Minister’s own opinion, the arrangement does harms security needs, in a way that is not significant. Such insignificant harm is sufficient to justify establishing a quota, as the petition requests. This having been said, Adv. Har-Zahav noted the petitioners' position that the current arrangement does indeed significantly jeopardize security needs.

He contends that the feeling of national solidarity is in fact part of the security ethos. This feeling is deeply wounded by the present arrangement’s discriminatory nature.   Adv. Ressler (who pleaded on the appellant’s behalf in HC 715/98), for his part, similarly highlighted the arrangement’s discriminatory character. He argued that the Defense Minister was by no means authorized to grant draft deferrals to full-time Yeshiva students, and that the existence of a quota was immaterial. He also maintained that, the implication of the Defense Minister’s position is the arrangement does infringe on security needs in a way that is not significant. In his opinion, the Defense Minister bears the burden of proving that the arrangement does not impair security needs. Mr. Ressler once again emphasized that, in his opinion, the arrangement as a whole ought to be enshrined in legislation and not by way of exemptions granted by the Defense Minister. He also noted that this had been the recommendation of the sub-committee of the Foreign Affairs and Security Committee.

The Ressler Case

17.  In Ressler [1] the Court, after establishing that the petition was (both normatively and institutionally) justiciable, held that deferring the enlistment of full-time Yeshiva students was legal. This decision was the product of three interim decisions that the Court had rendered. Each of these “interim decisions” was a necessary link in the chain leading to the conclusion that the Defense Minister’s decision was legal. The first “interim decision” provided that, in principle, all of the arrangements (primary and secondary) relating to the deferral of full-time Yeshiva students’ enlistment could be promulgated via administrative regulations. It was therefore not legally necessary to anchor regulation of this matter in legislation, nor was it legally necessary to anchor these primary arrangements in legislation. The second interim decision was that section 36 of the Defense Services Law constituted a legal source for the regulation of the enlistment deferral for Yeshiva Students. The language of section 36 of the Defense Services Law is as follows:

Authority to exempt  or to defer

36. The Minister of Defense may, if he sees fit to do so for reasons related to the size of the regular forces or reserve service forces of the Israel Defense Forces or for reasons related to the requirements of education, security settlement or the national economy or for family or other reasons do the following, by order: (1)  exempt a person of military age from regular service duties or reduce the period of his service; (2)  exempt a person of military age from reserve duties for a specific period or absolutely; (3)   by virtue of an application made by a person of draft age or a person designated for defense service other than a person of draft age, defer by order for a period prescribed therein, the date of reporting prescribed for that person, under this Law or regulations hereunder, for registration, medical examination, defense service or, if he has already begun to serve in the defense service, the continuance thereof.

In the second interim decision, the Court held that the enlistment of Yeshiva students was being deferred for both religious and security related reasons, namely, “for reasons related to the size of the regular forces or reserve forces ... or for reasons related to education requirements ... or other reasons.”  The third and final interim decision examined the Defense Minister’s discretion in exercising his authority.  The Court held that the exercise of the Minister’s discretionary powers was “reasonable” and that the balance between the security interest (the dominant interest) and the religious (external to security) interest was reasonable. Each of these three interim decisions was based on a particular social and security reality, as they were presented to the Court. Indeed, the Court itself repeatedly emphasized that its decision was the product of that reality and that a change in the situation could engender a change in the legal conclusions drawn. In my opinion, I stressed that “at the end of the day, there is significance to the number of Yeshiva students whose service is deferred. There is a limit that no reasonable Defense Minister may exceed. Quantity makes a qualitative difference.” Ressler [1] at 505. We have now been presented with a new reality. As we have seen, there has been a significant increase in the number of Yeshiva students whose service has been deferred by reason of their being full-time students (in 1987 they totaled 17,997 whereas in 1997 they numbered 28,772). The percentage of enlistees who had their service deferred in that year was 5.4%. In 1997, they constituted 8% of the number of enlistees in that year. Opposition to the arrangement has continually increased. There is ever increasing antagonism between the population whose sons serve in the military and those whose sons are granted a deferral which ultimately becomes an exemption from service.  It is against this backdrop that old questions reawaken to be examined anew. Is it possible to continue regulating the enlistment deferrals granted to full-time Yeshiva students by way of primary arrangements, which are not based on legislation? Does the authorization stipulated in section 36 of the Defense Services Law constitute a sufficient legal basis for granting deferrals to Yeshiva students?  In view of today’s reality, is the decision to grant service deferrals to full-time Yeshiva students still a reasonable one? Each of these issues engenders a host of difficult legal questions. In light of the conclusion I have reached in this case regarding the first issue, namely whether the arrangement to defer the enlistment of full-time Yeshiva students must be enshrined in legislation, I may leave the other two questions to be decided at a more opportune time. Having said this, I will now proceed to examine the critical question at bar.

Statutory Enshrinement of Primary Arrangements Regarding Enlistment Deferrals

18.  May the entire arrangement regarding enlistment deferrals granted to full-time Yeshiva students (“for whom Torah is their calling”) be premised on the Defense Minister’s general prerogative, by virtue of the Defense Services Law, without specifying the principles and scope for the regulation of such a deferral in the statute itself? Can the Defense Minister be endowed with the authority to decide this matter, without the Knesset having addressed the issue (beyond the general authorization provided under section 36 of the Defense Services Law to defer service for “other reasons”)? As noted, this issue arose in Ressler [1] where I stated:

…by virtue of the Rule of Law, it is proper that ‘primary arrangements’ be set forth explicitly in legislation and that the administrative agency not be endowed with the general authority independently to determine primary arrangements.

Ressler [1] at 502.

 

To this I added:

…it is desirable, pursuant to the principles of a “true, democratic, parliamentary regime” that the Knesset adopt an explicit position regarding the issue of draft deferrals granted to Yeshiva students, and not satisfy itself with the Defense Minister’s general and sweeping empowerment to grant service deferrals “for other reasons” …

Id.

 

Even so, I averred to the fact that it could not be said “that the Knesset’s abstention from setting forth primary arrangements and from imposing supervision on the Defense Minister’s arrangements invalidates [the Defense Minister’s] general empowerment to this effect…” (Id.). I was confident that “having determined that ‘other reasons’ may serve as grounds for deferral of defense service, the Legislature by this very fact empowered the Defense Minister to determine what those other reasons are” (Id.).  Do these conclusions retain their validity in view of a new reality? In order to answer these questions, consideration must be given to the legal principle regarding the establishment of primary arrangements in legislation. In light of the scope and power of this principle, its application must be examined with respect to the issue of granting draft deferrals to full-time Yeshiva students. We will now proceed to examine each one of these issues.

Establishment of Primary Arrangements in Legislation

19. A basic rule of public law in Israel provides that where governmental action is enshrined in a regulation or an administrative guideline, then the general policies and basic criteria constituting the basis of the action must be established in legislation, pursuant to which the regulation was enacted or the administrative decision adopted. In more “technical language," - under this basic rule, “primary arrangements” that determine general policy and the guiding principles, must be enshrined in statute (Knesset Legislation), whereas regulations or administrative guidelines must only determine “secondary arrangements.” See I. Zamir, Chakika Minhalit: Michir Hayieelut [Administrative Legislation: Price of Efficiency (hereinafter – Zamir, “Administrative Legislation” [78]); 2 A. Rubinstein, Hamishpat Haconstitutzioni shel Midinat Yisrael [Israeli Constitutional Law] (hereinafter - Rubinstein [72]) at 803.  Professor Klinghoffer also made this point:

... every administrative act, whether by force of administrative regulations, or even an individual act, must, as far as its basic contents are concerned, be prescribed by a statutory norm. In this sense, it can be said that in a state governed by the Rule of Law, the authority to set forth primary arrangements rests with the Legislature, whereas the administrative agencies are entitled to prescribe secondary arrangements alone, within the statutory framework.

Y.H. Klinghoffer, Shilton Hachok Vichakikat Mishneh [Rule of Law and Administrative Regulations (hereinafter - Klinghoffer [79]) at 108.

 

Acting President, Justice Shamgar, cited these comments, adding:

In terms of the desired legislative policy for the division between the legislature and the administrative agency, I concur with Prof. H. Klinghoffer’s position ...

HC 337/81 Miterani v. Minister of Transportation (hereinafter - Miterani [2]) at 357.

 

In this spirit, the Courts repeatedly emphasized that primary arrangements must be determined by the Knesset whereas the administrative agency must, for its part, deal with secondary arrangements. See HC 266/68 Municipality of Petach Tikvah v. Minister of Agriculture (hereinafter – Petach Tikvah [3]); CA 524/88 “Pri Ha’Emek” Cooperative Agricultural Society Ltd. v.  Sdeh Ya’akov Workers’ Village of HaPoel Mizrachi, Agricultural Cooperative Settlement (hereinafter – Pri Ha’Emek [4]), at 552. My colleague, Justice Cheshin, similarly noted:

“Primary arrangements” must find their place in statute (Knesset Legislation) ... regulations are not, in principle, designed for anything other than the implementing statutes. This is the pillar of fire, this is the pillar of smoke that illuminate our path by night and by day, and by its lead we shall follow.

 

HC 2740/96 Shansi v. Diamond Comptroller, (hereinafter - Shansi [5]) at 504.

In the same vein, I commented in another case:

[I]t is also appropriate ... that the legislature establish primary arrangements and leave secondary determinations to administrative authorities … this is how a constitutional democracy operates …

HC 5016/96 Horev v. Minister of Transportation (hereinafter - Horev [6]) at 75-76 {[1997] IsrLR 149, 233)}.

 

We will refer to this as the basic rule regarding primary arrangements.

20.  The reasons underlying this basic rule are threefold: the first is enshrined in the doctrine of Separation of Powers. See B. Schwartz Administrative Law (1989) (hereinafter- Schwartz [90]), at 43; Mistretta v. United States [54] at 371.  According to this doctrine, the enactment of statutes is the province of the legislative branch. “There is no legislature other than The legislature, exclusively endowed with the power to legislate” (as per Justice Silberg, CrimA 53/54 Eshed, Temporary Transportation Center v. Attorney General [7] at 819).

In Israel, this principle has found expression in the Basic Law: The Knesset, which provides that “the Knesset is the House of Representatives of the State” (sec. 1). It is “the Legislature” (sec.1 of the Transition Law, 1949) and the “Legislative Branch” (sec.7(a) of the Government and Judiciary Ordinance, 1948). HC 3806/93 Manning v. Minister of Justice [8] at 425.  It is by virtue of this principle that the power to legislate is vested in the Knesset. Indeed, a strict understanding of this principle would necessarily mean that the Knesset cannot delegate any kind of legislative power to the executive branch.  This, in fact, was the United States Supreme Court’s position in the nineteenth century, holding that the legislature had received its mandate to legislate from the people and was therefore not authorized to delegate that mandate to anyone else. Schwartz [90] at 43. This strict approach is no longer accepted in the United States or in Israel, for that matter. Modern reality, particularly that of the welfare state, required broad delegation to the executive authority for the performance of legislative acts. See President Shamgar’s remarks in CA 825/88 Association of Israeli Soccer Players v. Israel Soccer Association [9] at 105. This also fostered flexibility in such arrangements and allowed for the possibility of introducing changes according to the needs of the time and the place. See 1 B. Bracha  Mishpat Minhali [Administrative Law] (hereinafter – Bracha, Administrative Law [73]) at 82.

Thus, Professor Zamir correctly pointed out that “the legislative branch … is incapable of legislating all of the legislation required for implementing the duties that it imposes on the executive branch with the requisite speed and expertise. This is especially true in Israel, where there are exceptional requirements relating to national security, immigrant absorption and building the national economy. The public good necessitates exceptional powers for all of these.” 1 I. Zamir, Hasamchut Haminhalit [Administrative Authority] (hereinafter – Zamir Administrative Authority [74]) at 68. The doctrine of separation of powers is thereby faced with the “dilemma between the desire to restrict the power of the administration and the need to allow it to exercise such power in order to achieve social goals as efficiently as possible.” Y. Dotan, Hanchayot Minhaliot [Administrative Guidelines] [75] at 310. The solution is found in many and varied avenues. Within these, we find the notion that in order to maintain the authority for administrative regulations in the hands of the executive, we must not relate to [this authority] “as to an evil that must be combated, or even as a necessary evil, but rather as a positive phenomenon that helps society advance.” Zamir, “Administrative Legislation” [78] at 65. Some of those measures do not relate to the petitions before us, but rather to the approach that requires Knesset ratification of administrative regulations. See B. Bracha, Chakikat Mishneh [Administrative Regulations] [80] at 413; B. Bracha, Likrat Pikuach Parliamentary al Chakikat Mishneh [Parliamentary Supervision of Administrative Regulations] (hereinafter – Bracha, “Parliamentary Supervision” [81]) at 392. See also, on the broadening of the bases for judicial review of administrative regulations, A. Barak, Pikuah Batei Hamishpat al Tichikat Mishneh [Judicial Supervision Administrative Regulations] [82] at 465. One of the means found to be appropriate for this purpose allows for administrative legislation, while increasing the legislative branch’s supervision by way of its own legislation regarding administrative regulations enacted by the executive branch. It is within this framework that an approach developed by which the vesting of legislative authority in the executive branch is permitted, provided that the legislative branch itself establishes the fundamental parameters within which the executive authority can legislate. This point was made by Justice Rehnquist who stated:

... the most that may be asked under the separation-of-powers doctrine is that Congress lay down the general policy and standards that animate the law, leaving the agency to refine those standards, “fill the blanks” or apply the standards to particular cases.

 

Industrial Union Dept. v. American Petrol. Inst. (1980) [55] at 675.

 

From this derives the rationale – enshrined in the modern understanding of the doctrine of separation of powers – which lies at the heart of the rule according to which legislation empowering the executive branch to perform legislative or administrative acts must establish the primary arrangements by virtue of which the administrative agencies act.  “[I]f the Knesset is indeed the ‘legislative branch’ then empowerment for administrative regulations which implement the basic principles and guidelines (primary arrangements) established in the legislation, is consistent with this principle.” 2 A. Barak, Parshanut Bimishpat [Interpretation in Law] (hereinafter – Barak, Interpretation in Law [76]) at 528. On the other hand, if the legislation empowers the administrative agency to establish primary arrangements without any directives or guidance, the doctrine of separation of powers is violated. “When the Knesset is divested of its legislative cloak and transfers it to the expertise of the public administration, it severely undermines the principle of the separation of powers.” Bracha, “Parliamentary Supervision” [81] at 395. To this effect, the Constitutional Court of Germany expressed itself in a similar vein:

If [a statute] does not adequately define executive powers, then the executive branch will no longer implement the law and act within legislative guidelines, but will substitute its own decisions for those of the legislature. This violates the principle of the separation of powers.

 

8 BverfGE 274 (1958) [67] (trans. D.P. Kommers) in The Constitutional Jurisprudence of the Federal Republic of Germany (hereinafter – Kommers [91]) at 138.

 

21.  The second reason for the basic rule regarding primary arrangements is rooted in the Rule of Law. This principle is a complex one, with many different aspects. See Rubinstein [72] at 227. One of its numerous dictates is that legislation must establish guidelines and principles according to which the executive branch must act. Legislation must establish primary arrangements, and administrative regulations and individual acts must deal with implementation. This point was made by Professor Klinghoffer, who wrote:

We must distinguish between the concept of administrative legality, which is satisfied by formally binding the administration to the law, and the concept of specific legality, necessary for the realization of the Rule of Law. This latter concept signifies the maximum binding of the administration through the law ...

 [T]he Rule of Law ... does not permit the Legislature to waive its power to establish primary arrangements in favor of the administration - in other words to delegate this power.  Any transfer of that power to an administrative authority conflicts with the Rule of Law. Where the Rule of Law reigns, the Legislature is not at liberty to choose between options, in other words to personally bind the administration by establishing primary arrangements or to empower the administration to perform this legislative work in its stead. It is incumbent upon the Legislature to establish these arrangements itself. The Rule of Law dictates that the principle elements of any administrative act be anchored in primary arrangements set forth in the formal statute, and that the determination of those arrangements is within the exclusive authority of the legislature and cannot be transferred to administrative agencies.

Klinghoffer [79] at 108.

 

Prof. Zamir made similar comments:

[T]he Rule of Law requires that the legislature itself establish principles, primary arrangements, whereas the administration is only empowered to legislate the details for implementing the primary arrangements.

Zamir, “Administrative Legislation” [78] at 70.

 

This approach is not restricted to academia. It has been adopted by the case law. Hence, my colleague, Justice Cheshin noted:

The Rule of Law, in its substantive sense, instructs us that primary arrangements must find their place in the laws of the Knesset; regulations are in principle intended for the implementation of the laws only.

Shansi [5] at 504.

 

I too made this point in one of the cases:

“[T]he Rule of Law, in its substantive sense … means, inter alia, that legislative arrangements will ensure an appropriate balance between individual rights and public needs. In the realm of administrative regulations, this justifies the legislation being established by the legislature, not by the secondary legislature ...” Pri Ha’Emek [4] at 553.

This approach is not a new one. It is part of the fabric of Supreme Court rulings since the establishment of the State. Justice Olshan’s famous comments in this respect are well known:

[W]ere we to turn down the petitioner’s request we would become accomplices in rendering the Rule of Law governing the state a dead letter. The fundamental meaning of [the Rule of Law] is that restrictions ... whose imposition on individual freedom is unavoidable as a means of ensuring that individual freedom does not violate the freedom of others or the interests of society ... must be established by the Legislature, in other words, by the society that expresses its views in the statutes enacted by the legislature that represents it, and not by the administrative agency, whose task is limited to the implementation of these restrictions, in accordance with the said statutes.

HC 144/50 Sheave v. Defense Minister [10] at 411.

 

In another case, Justice Olshan emphasized:

[A]ccording to the principle of the ‘Rule of Law,' it is incumbent on the Legislature himself to determine and specify in the law, those cases in which licenses are to be granted or refused, while it is for the executive branch only to ensure the execution of those legal provisions. Accordingly, the legislative task must be discharged so that the citizen can find the answer in the law itself as to what is permitted and what is forbidden, and without being dependent on the discretion of the executive branch. However, as a result of the change of the social order in our generation and state intervention in all areas of life, not only in our state, the legislature is unable to foretell each and every case and to enact provisions in the law for each specific case. Consequently, the legislature satisfies itself with the determination of the general principles (though this is not always done).  The details and the modes of implementation of the general principles in each particular case are transferred to the discretion of the empowered branch; in other words, the Legislature confers the empowered branch with the authority to supplement that which was left out by the Legislature …

 HC 113/52 Zaks v. Minister of Trade and Industry [11] at 702.

 

_{Thus, the Rule of Law signifies that primary arrangements and} standards will be provided by statute, whereas the administration’s role is to implement these primary arrangements by establishing secondary arrangements and methods of implementation. In the words of the New York Supreme Court:

Without such standards, there is no government of law, but only government by men left to set     their own standards, with resultant authoritarian possibilities.

Rapp v. Carey (1976) [56].

 

The Constitutional Court of Germany also made this point, stating:

“The basic tenets of the rule of law require that an empowering statute adequately limit and define executive authorization to issue burdensome administrative orders according to content, subject matter, purpose and scope ... so that official action [will] be comprehensible and to a certain extent predictable for the citizen.”

8 BVergGE 274 (1958) [67] in Kommers [91] at 138.

 

22.  The third reason for the basic rule targeting primary arrangements is rooted in the notion of democracy itself. See D. Schoenbrod Power Without Responsibility [92] at 14. Justice Cheshin wrote that “the democratic principle as such permeates the entire Israeli legal system, becoming part of the genetic code of all of the binding norms in Israel.” HC 7351/95 Nevuani v. Minister of  Religious Affairs (hereinafter- Nevuani [12]) at 121. This reason essentially parallels the first and second reasons, both of which also derive their vitality from the nature of democracy; however, it also emphasizes an additional aspect. This is the aspect of democracy itself. Democracy is a complex concept, based on two central tenets: the will of the people as expressed in the principle of representation and basic values such as the Rule of Law and the Separation of Powers. At the center of these values lies the idea of human rights. Indeed, “democracy is not merely formal democracy ... in which decisions are adopted according to majority will. Democracy is also substantive democracy ... in which the majority cannot suppress human rights.” Horev [6] at 45. The basic rule regarding primary arrangements derives its vitality from both these tenets of democracy. According to the first, democracy signifies the rule of the people. In a representative democracy, the nation chooses its representatives, who act within the context of its parliament. See C. Klein, Al Hahagdara Hamishpatit shel Hamishtar Haparliamentary vi’al Haparliamentarism Hayisraeli [Legal Definition of Parliamentary Regime] [83]. The people’s elected representatives must adopt substantive decisions regarding State policies. This body is elected by the nation to pass its laws, and therefore benefits from social legitimacy when discharging this function. See B. Aktzin, Torat Hamishtarim [Theories of Government[ [77] at 239, 244.  Hence, one of the tenets of democracy is that decisions fundamental to citizens’ lives must be adopted by the legislative body which the people elected to make these decisions.  Society’s policies must be adopted by the legislative body, as echoed by Justices Sussman and Witkon, who wrote:

Administrative regulations regarding principled, cardinal matters, by force of an empowering law, is liable to lead us to a formal democracy only. A real parliamentary democracy requires that legislation be promulgated in the Legislature.

Petach Tikvah [3] at 831.

 

In this vein, Justice Brennan similarly noted:

Formulation of policy is a legislature’s primary responsibility, entrusted to it by the electorate, and to the extent the Congress delegates authority under indefinite standards, this policy-making function is passed on to other agencies, often not answerable or responsive in the same degree to the people.

 

United States v. Robel (1967) [57] at 276.

 

A similar approach was taken by Justice Rehnquist who explained that in the United States, the delegation of legislative power to the executive branch was contingent on the standards being set out in legislation, because this requirement “ensures to the extent consistent with orderly governmental administration that important choices of social policy are made by Congress, the branch of our Government most responsive to the popular will.” Industrial Union Dept. [55] at 685; See also American Textile Mfrs. Inst. v. Donovan (1981) [58] at 543.

Professor Tribe expressed the same idea:

 [B]road delegations are politically objectionable because, by enabling Congress to pass the buck on hard choices, and to leave such choices to administrative or executive processes less open to inputs from affected groups, such delegations may short-circuit the pluralist process of interest accommodation usually structuring legislative decision making.

L.H. Tribe, American Constitutional Law [93] at 365.

 

The Constitutional Court of Germany adopted a similar approach, noting that it is the legislature that must decide which interests justify the violation of individual freedoms. The Court added:

The democratic legislature may not abdicate this responsibility at its pleasure. In a governmental system in which the people exercise their sovereign power most directly through their elected Parliament, it is rather the responsibility of this Parliament above all to resolve the open issues of community life in the process of determining the public will by weighing the various and sometimes conflicting interests.

33 BVerfGE 125 (1972) [68] in D.P. Currie, The Constitution of the Federal Republic of Germany (hereinafter- Currie [94]) at 132.

 

In another case, the Court wrote:

In a free democratic and constitutional system, [P]arliament has the constitutional task of enacting laws. Only Parliament possesses the democratic legitimacy to make fundamental political decisions. To be sure, the Basic Law approves of a 'delegated' legislation by the executive. However, the executive can legislate only within limits that the legislature prescribes. Parliament cannot neglect its responsibility as a legislative body by delegating part of its legislative authority to the executive without beforehand reflecting upon and determining the limitations of those delegated powers. If the legislature does not satisfy this requirement, then [it] will shift unfavorably the balance of powers presupposed by the basic law in the area of legislation.

34 BVerfGE 52 (1972) [69] in Kommers [91] at 145, 147.

Thus, the nature of representative democracy clearly demands that administrative regulations and administrative provisions of the executive branch be rooted, both formally and substantively, in legislation, enacted by the legislature. Indeed, the Legislature cannot transfer fateful and difficult decisions to the executive authority without first guiding its path. Even if elected directly by the people, as is the case here of the Prime Minister, the role of the executive, as indicated by its appellation – is to execute. Prof. Zamir was correct in writing that:

As a matter of principle, it is preferable that, where the circumstances permit, the Legislature set forth the general principles and primary arrangements itself, and not leave this to the enactor of regulations.  The democratic regime, according to its very essence, requires that the general principles that determine the people’s lifestyle be determined as a rule in legislation, by the Parliament and not through administrative regulations enacted by the public administration.

I. Zamir, Hanchayot Hayoetz Hamishpati Lamemshala – Chakikat Mishneh, Nohel Vihanchaya [Attorney General  Guidelines] (hereinafter – Zamir, “The Attorney General’s Guidelines” [84]) at 345.

 

In another place, he writes:

[T]he Knesset is not able and probably should not deal with the details regarding the implementation of general principles, especially when setting forth such details requires special expertise, [when these details may be] subject to frequent changes, or when they must be established with relative speed. However, the Knesset can, and indeed must, discharge its central function, in the absence of which it loses its raison d'etre. This is the role of establishing general principles by way of statute. If the Legislature for any reason abdicates this task, it betrays its duty, undermines its very existence and furthermore, removes the basis for the regime’s democratic character. A regime in which the legislative branch transfers its legislative role in establishing general principles to the public administration remains a democracy in name and image only, and not in practice.

Zamir, “Administrative Legislation” [78] at 70.

 

This is an approach that attempts to preserve the status of the Knesset and the status of the democratic principle of representation upon which it is based. It is not restricted exclusively to the requirement that primary arrangements be determined via legislation. The desire to preserve the elevated status of the Knesset is of general application. “… we are duty-bound to take care not to overstep our bounds and enter the Knesset’s territory. We must take heed that our behavior be commensurate with democratic theory.” See Justice H. Cohn in Petach Tikvah [3] at 833. Hence this Court ruled, per Justice S. Levin, in respect of Emergency Regulations, that “where there is a possibility of regular, prompt legislation by the Knesset, then the legislative authority of the executive branch is usurped, because, as a matter of principle, the authority to enact emergency regulations should be used only where there is no possibility of waiting for the regular legislative procedures of the Knesset.” HC 2994/90 Poraz v. Government of Israel [13] at 322. Similarly, regarding the legality of raising pigs in Israel, Justice Berenson wrote:

Conceivably, attaining this goal is politically and nationally desirable as its advantages, from that perspective, outweigh the purely economic disadvantages presented by the petitioners. However, there are doubtless many who regard the government’s actions as religious coercion, at least indirectly. Either way, it is not for us to express an opinion on the matter. Nor is it the respondent's task to resolve religious national dilemmas using administrative tools conferred upon it for entirely different purposes and goals ... the problem is a national problem and not a local one, the solution to which is in the hands of the Legislature which is empowered, if it deems it necessary, to restrict individual freedom…

HC 98/54 Lazarovitz v. Food Supervisor of Jerusalem [14] at 56.

 

Similarly, it was determined that restrictions or prohibitions on freedom of religion or freedom from religion of citizens of the State must be anchored in legislation. In this matter, my colleague, Justice Or, wrote as follows:

The issue is the possibility of violating rights included in the charter of the most fundamental and sensitive of basic rights, the rights to freedom of religion and conscience. It is therefore proper that the Legislature decide them. The reason for this is that only the Legislature can express the optimal consensus that accommodates the coexistence of people of different religions and different beliefs.

HC 3872/93 Mitral Ltd. v. Prime Minister and  Minister of Religious Affairs (hereinafter – Mitral [15]  at 498.

 

In the same vein, my colleague Justice Cheshin, wrote in that case:

[R]eligious commandments cannot be forced upon those who are not observant and those who are not interested in fulfilling religious commandments; no coercion, either direct or indirect, is possible, except according to statutes enacted by the legislature, the Knesset. The doctrine of separation of religion and state is part and parcel of the legal system. It is only by way of Knesset statute - on the national level, that the fulfillment of religious commandments can be imposed ...

Id. at 507.

 

Although the case at bar is unrelated to emergency regulations and does not regard matters that have been discussed in the judgments cited, the common denominator of all these cases is the understanding that there are certain issues that can be determined by the legislative branch alone. It represents the people, is elected by them for that purpose, and therefore has the power to choose the most appropriate alternative to advance, among the various paths available.

23.  The second tenet on which democracy is based (in the substantive sense) is a regime of values, including the doctrine of Separation of Powers and the Rule of Law, as noted above. There is also a third and central value, namely human rights. These three tenets are closely interrelated. Separation of powers is not a value in its own right, nor is it intended to ensure efficiency. The aim of the separation of powers is to increase freedom and prevent the concentration of power in one sovereign authority in a manner liable to violate individual freedom. To this effect, Justice Brandeis noted:

The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of governmental powers among three departments, to save the people from autocracy.

Myers v. United States (1926) [59] at 293.

 

The same can be said for the Rule of Law. This principle is not only intended to ensure the administration’s legality; it seeks to protect individual liberty, as Prof. Klinghoffer elucidates:

In view of the Rule of Law’s historical development, democracy was not its chief aim, but rather a means of achieving another principle aim - ensuring individual liberty.

Klinghoffer [79] at 107.

 

Hence, human rights form the central tenet of democracy. There can be no democracy without human rights. There is no democracy where the majority illegally deprives the minority of its rights. Obviously, human rights are not absolute. A democracy (in the substantive sense) is entitled to violate human rights in order to attain its objectives, provided that the violation is prescribed by law; promotes the values of the state; is for a worthy purpose and does not exceed that which is necessary. See sec. 8 of the Basic Law: Human Dignity and Liberty); sec.4 of the Basic Law: Freedom of Occupation, and also CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village (hereinafter – United Mizrahi Bank [16]). This sensitivity to human rights leads to the conclusion that the violation of human rights, even when it promotes the values of the state, is for a worthy purpose and does not exceed that which is necessary, must be prescribed by a law specifying the primary arrangements. Indeed, one cannot be satisfied with the formal delegation of legislative authority to the executive branch. Hence, the requirement that primary arrangements be set forth in legislation and administrative regulations, or administrative orders concerning implementation, is anchored in the need to protect individual liberty. Indeed, in a democracy, it happens that the violation of individual rights is [at times] necessary for the realization of the general interest. Even so, the requirement is that this violation, even if justified, must be enshrined in legislation and not delegated to the executive branch itself. See Schwartz [90] at 61. One American case considered a statute that allowed the executive branch to issue or refuse to issue a passport to a citizen. The Court held that this constituted a violation of individual freedom. Such a violation was possible only if the violating statute, and not the executive power, established the basic criteria for exercising that authority. Justice Douglas wrote the following:

The right to travel is a part of the “liberty” of which the citizen cannot be deprived without due process of law under the Fifth Amendment ... If that “liberty” is to be regulated, it must be pursuant to the law-making functions of the Congress ... And if that power is delegated, the standards must be adequate to pass scrutiny by the accepted tests.

Kent v. Dulles (1958) [60] at 125, 129; See also Shuttlesworth v. Birmingham (1969) [61].

 

The Canadian Supreme Court adopted a similar approach. According to the Canadian Charter of Rights and Freedoms, protected human rights may be violated only where the conditions prescribed by the Canadian limitation clause (sec. 1 of the Charter) are met. Among these is the condition that the restriction be “prescribed by law." It was held that the import of this provision is that the fundamental and basic criteria must be set forth by statute. See P.W. Hogg, Constitutional Law of Canada [95] at 862. The upshot is that conferring authority to violate a protected human right is permitted, provided that this is done within the framework of the criteria established in the legislation. To this effect, Justices  Dickson, Lamer, and Wilson wrote the following:

Where there is no intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances, there is no limit “prescribed by law.”

Irwin Toy Ltd. v. Quebec (1989) [71] at 982.

 

A similar approach was taken by the European Court of Human Rights. The Sunday Times v. The United Kingdom (1979) [64] at 270; Malone v. United Kingdom (1984) [65] at 40; Leander v. Sweden (1987) [66]. This was also the path taken by the German Constitutional Court. See Currie [94] at 132. In the Constitutional Court’s own words:

Today it is firmly established by the decisions that, without regard to any requirement of an incursion [into individual freedom] in basic normative areas, and especially when the exercise of basic rights is at stake, the legislature is required ... to make all essential decisions itself.

49 BVerfGE 39 (1978) [70] at 126-127.

 

It is therefore clear that the democratic principle in all of its aspects, both in terms of representation and in terms of values, means that fundamental criteria (the primary arrangements) must be enshrined in legislation. Administrative regulations and the individual acts of an administrative agency (secondary arrangements) must implement the fundamental criteria established in the legislation. What are these primary arrangements and how are they determined? We shall now proceed to examine that question.

Primary Arrangements Defined

24.  The basic rule regarding primary arrangements, as we have seen, is that administrative regulations or individual administrative acts, based upon legislation (secondary arrangements), must set forth the manner in which statutes are to be implemented, whereas general policy and fundamental criteria (primary arrangements) must be prescribed in the principle legislation (statute). The reasons supporting the distinction between primary and secondary arrangements also determine the scope of each. Considerations of the Separation of Powers, the Rule of Law and Democracy (in both the formal, representative sense and the substantive sense), means that it is appropriate that legislation, which delegates the establishment of administrative regulations or administrative orders to the executive authority, determine the general plan, so that administrative regulations and implementing provisions can realize that which was set out in principle in legislation. The guidelines for the resolution of crucial issues, which are fundamental to the life of the individual, must be prescribed by statute. Hence, a primary arrangement exists where, on the basis of the law itself, in accordance with its interpretation by accepted interpretative methods, it is possible to infer the parameters within which the executive branch may act, as well as the direction, principles, or purpose that are supposed to guide the executive authority in its actions. To the extent that the regulation of a particular area requires that fundamental decisions which substantially affect the lives of individuals and society be taken, it is appropriate that such decisions be made within the confines of the statute itself. Hence, a primary arrangement exists where the statute itself sets out the principles or standards on a higher level, which must be brought to fruition at a lower level. The level of abstraction of the primary arrangement will change from issue to issue. As far as, and to the extent that the issue is one in which individual freedom is violated, so too the level of abstraction cannot be too high and an arrangement that establishes the nature of the violation and the extent of the violation of freedom enshrined in the legislation will be required. When the object of the regulation is a complex one, requiring considerable expertise, it is quite often possible to satisfy oneself with a very high level of abstraction. See Currie [94] at 42; U. Kischel, “Delegation of Legislative Power to Agencies: A Comparative Analysis of United States and German Law” (hereinafter – Kischel [97]).

25.  At this juncture, two comments should be made. First, the distinction between primary and secondary arrangements is not a sharp one. There is much ambiguity regarding where to draw the line between the two kinds of arrangements. As far back as 1825, the Chief Justice of the United States Supreme Court at the time, Chief Justice Marshall, wrote:

The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made and power given to those who are to act under such general provisions, to fill up the details.

Wayman v. Southard (1825) [62] at 19.

 

In a similar vein, Prof. Klinghoffer wrote:

[T]he conceptual border distinguishing a primary arragenment from a secondary arrangement cannot be defined in the general, abstract sense. It depends on the nature and specific nature of the topic being regulated. Hence, the determination of whether a specific arrangement is primary or secondary can only be the product of induction, in accordance with common sense and logic.

Klinghoffer [79] at 122.

 

Prof. Zamir also dealt with this issue, stating:

It is difficult to establish the distinction or border between primary and secondary arrangements. To a certain extent, the two realms merge. Being overly strict about the distinction between these two realms is liable to disrupt administrative action and be detrimental to the public welfare.  Hence, in borderline cases, the question must be answered primarily on the basis of the balance between the administrative needs and public welfare and the degree of violation of the Rule of Law.

Zamir, “The Attorney General’s Guidelines” [84] at 354.

 

Thus, the nature of the arrangement, its social implications, and the degree of violation of individual freedom are all factors that influence the scope of the primary arrangement and the degree of specification required thereof.  Furthermore, the dictates of today’s reality necessitate compromising between principles and the imperatives of everyday life. In a modern democratic regime, it is difficult to fully realize the principles enshrined in primary arrangements. Quite often, compromise is required for reasons of administrative efficiency, in order to ensure public welfare. Even so, as a matter of principle, this does not detract from the power and the validity of the basic rule. Practically speaking, too, there are limits to the permissible compromise. In certain extreme cases the basic rule may prevail over considerations of efficiency, and it is appropriate to invalidate secondary arrangements that lack a statutory foundation (primary arrangements).

26.  Second, in determining the fundamental standards and lines of general policy, cognizance must also be had for leaving the legislature wide room to maneuver. As we have observed, the distinction between primary and secondary arrangements cannot be precisely drawn, because it varies from issue to issue. The reality of life often necessitates a compromise between the basic rule and other considerations, primarily considerations of efficiency.  Indeed, the legislature is familiar with the material, as well as with the extent of its capacity to deal with the material within the temporal confines within which it operates. It also understands the need to delegate the establishment of arrangements that require expertise and professionalism to the executive branch.  One cannot be overly strict with the Legislature in this matter. Occasionally, it is sufficient that the Legislature provide instructions at a high level of abstraction, in which the degree of guidance provided is limited. Such instructions, too, are capable of satisfying the requirements of the basic rule. See A.C. Aman and W.T. Mayton, Administrative Law [96] at 9; Schwartz [90] at 42. The basic rule regarding the establishment of primary arrangements is not primarily designed to negate the authority to delegate power to the executive branch due to the failure to comply with requirements to specify primary arrangements in legislation. The main function of the basic rule regarding primary arrangements is to give a limited interpretation to the delegation prescribed by the legislation. See Kischel [97] at 220-23. Thus, the main function of legal systems in recognizing the cardinal rule regarding primary arrangements is interpretative, as a means of narrowing the scope of authority conferred upon the executive branch. The primary rule is therefore of limited applicability as a constitutional rule that can invalidate statutes authorizing the administrative authority to establish primary arrangements.

The Basic Rule’s Legal Status in Israel

27.  What is the legal status of the basic rule regarding primary arrangements in Israeli law? In this respect, a distinction must be drawn between two periods. The first period, until the enactment of the Basic Laws regarding human rights and their interpretation by this Court in United Mizrahi Bank [16] and the second period, subsequent to the enactment of these laws, as the Court interpreted them in that case.

28.  During the first period, the basic rule regarding primary arrangements was one of the rules of Israeli public law. It formed part of the common law, “Israeli style.” It was first and foremost an interpretative rule. Accordingly, there was an interpretative presumption that delegation of power to enact administrative regulations or orders was delegation exclusively for the establishment of secondary arrangements. See Rubinstein [72] at 361. It was in relation to this interpretative presumption that I wrote:

[W]here power to enact administrative regulations has been delegated to the executive branch, we must presume that this power is intended for implementing those arrangements set out in the legislation. There is therefore a presumption that the power to enact administrative regulations is the power to enact implementing regulations (secundum legem). It cannot be assumed that the purpose of delegating authority for administrative regulations was to empower the administration to enact administrative regulations “external to the law” (praeter legem) or administrative regulations that goes “against the law” (contra legem). Thus, if the Knesset is the legislative branch, only a delegation of the power to enact administrative regulations that implements the basic principles and standards (primary arrangements) established in the legislation is consistent with this principle. Thus, the legislature will be presumed to have authorized the administrative agency to establish principles and standards that are prescribed in the legislation (“secondary arrangements”) only. Needless to say, this is a presumption that may be rebutted.

Barak, Interpretation in Law [76] at 528.

 

This having been said, a concrete expression of this presumption can be found in those cases in which the Court interprets the language of the law against the backdrop of the legal system’s basic principles. These principles include, inter alia, the doctrine of the separation of powers, distinguishing between the power of the Knesset as expressed in the Basic Law: The Government, the Rule of Law and democracy (both formal and substantive). All of these form the statute’s “general purpose," which was given interpretative weight by the Court. See HC 693/91 Efrat v. Director of Population Registrar of the Ministry of the Interior [17] at 769. Even so, this general purpose may be overridden when it conflicts with a particular, conflicting purpose. See HC 953/87 Poraz v. Mayor of Tel Aviv-Jaffa (hereinafter- Poraz [18]), at 329. The Knesset was therefore entitled not to take the basic rule into account, and to reject it. It was authorized to grant the executive branch the power to enact primary arrangements. Thus, Prof. Klinghoffer was correct in stating:

 [I]n the absence of a constitution, the Legislature is omnipotent and therefore entitled to delegate the authority to enact administrative regulations to the administration at its own discretion.  Legally speaking, there is no obstacle in the path of formal delegations.  It is sufficient that the law itself specify certain matters, empowering the administration to legally regulate them, without the statute itself taking any pain concerning their regulation. This path is legally acceptable.

Klinghoffer [79] at 117.

 

In fact, together with the basic rule regarding primary arrangements, the Court also ruled that the Knesset was entitled to delegate the power to determine primary arrangements to the administration. See e.g. HC 122/54 Aksel v. Mayor, Councilors and Residents of the Municipality of Netanya (hereinafter – Aksel [19]) at 1531; Petach Tikvah [3] at 831. Deputy President Justice Shamgar discussed this point, writing that:

“…[T]he boundary that is supposed to limit the administrative agency to setting out secondary arrangements alone is not always adhered to by the legislature itself. However, even though this phenomenon is undesirable with respect to the existence of a substantive rule of law, it does not invalidate the administrative regulations in question per se. The standard for ascertaining the validity of the administrative regulations is prescribed by the legislation, which sets out the areas in which the administrative agency may act, by specifically authorizing acts of administrative regulations in defined areas…” Miterani [2] at 357.

Thus, the Legislature is entitled to ignore the basic rule. It is permitted to empower the executive branch to establish primary arrangements in administrative regulations or in administrative orders. Indeed, an examination of the statutes indicates that there are numerous delegations made by the Legislature to the executive branch for the purpose of determining primary arrangements. See Zamir, “Administrative Legislation” [78] at 70; Bracha, Administrative Law [73] at 94. See also A. Barak, “Subordinate Legislation” [85]. As a result, the interpretative presumption is one that may be refuted.  In effect, it was refuted in all those cases in which the interpretation of the empowering law, in light of its special purposes and other interpretative presumptions, led the Court to conclude that the statute’s overall intention was to empower the executive branch to prescribe the primary arrangements. It was during this first period that the legal consultants of the Government were instructed by the Attorney General to word the bills in a manner that would include the primary arrangements so that the executive branch’s power would be limited to the authority to establish arrangements for implementing the relevant statutes. This point was made by the Attorney General at the time (Prof. Zamir) in a guideline that he issued, stating inter alia:

“It is appropriate that the authors of various bills in the government offices be aware, with respect to any bill, of the proper relationship between legislation and administrative regulations. In this context, the guiding principle is that it is appropriate that the statute itself establish primary arrangements, to the extent that it is possible in accordance with the nature of the subject and under the circumstances, whereas the enactor of the regulations is empowered to establish only secondary arrangements via regulations (in other words – regulations for the purpose of implementation.” Zamir, “Attorney General’s Guidelines” [84] at 346.

Even so, these were guidelines from which the Knesset was entitled to deviate.

29.  So, during the first period, the main question that arose was not whether the Legislature was entitled to empower the executive authority to enact primary arrangements. The clear answer to this question was in the affirmative. During that time, the decisive question was whether the legislature had in fact empowered the executive branch to establish primary arrangements. The answer to this question was found by interpreting the empowering statute. In this context, the crux of the matter was the power of the presumption that the legislature had not empowered the subordinate authority to establish primary arrangements. The key question was therefore, in which cases can one rebut the presumption that primary arrangements must be set out by the Knesset.

30.  The case law did not provide a complete answer to this question. A distinction between administrative regulations and administrative orders that do and do not violate human rights emerged. For administrative regulations and orders belonging to the first category, the presumption regarding primary arrangements was quite weak. This, however, was not the case with respect to administrative regulations and orders that do violate human rights. Here, there emerged a clear position in the case law, which held that where a legislative arrangement violates individual liberty, generally speaking, the empowerment in the legislation must be clear, specific, and unequivocal. This point was made by Deputy President Justice Shamgar with respect to legislation that empowered the administrative agency to violate freedom of occupation:

… empowerment in this context means “express empowerment” and my intention here is only to cases in which the Legislature clearly states that it has empowered the administrative agency to enact regulations that set out prohibitions or restrictions on engaging in a particular profession ...

...      

... in the absence of a constitution establishing the legal status of basic civil rights, there is no restriction on the provisions which may be prescribed by statute (ordinary legislation) (with the exception of a few areas. See e.g. sec. 4 of the Basic Law: The Knesset. Administrative regulations on the other hand, derive their validity exclusively from the empowerment conferred by the legislature. Thus, when the issue relates to imposing restrictions on basic rights, the administrative agency has no authority to act, in my opinion, in those areas except if specifically and expressly authorized by the Legislature to act in the said area by way of restriction or prohibition, respectively ...

Miterani [2] at 358-59.

 

This approach is not strictly limited to legislation empowering an administrative agency to violate the freedom of occupation. As was held in the Miterani [2] case, this approach is a general one, applicable to any case in which the empowerment violates basic human rights. See Aksel [19] at 1531; HC 200/57 Bernstein v. Beth Shemesh Local Council [20] at 268;  HC 124/70 Shemesh v. Companies Registrar [21] at 513; HC 144/72 Lipabski- Halipi v. Minister of Justice [22] at 723; HC 333/85 Aviel v. Minister of Labor and Welfare (hereinafter – Aviel [23]), at 600; Pri Ha’Emek [4] at 561.  Thus, the approach that required specific, clear, and unequivocal authorization in order to empower the executive authority to violate individual freedom was also applied to freedom of expression (CA 723/74 “Ha’aretz” Newspaper Publishing Co. v. Israel Electric Co. [24] at 295; FH 9/77 Israel Electric Co. v. “Ha’aretz” Newspaper Publishing Co. [25] p. 359), to the right to equality (HC 301/63 Streit v. Israeli Chief Rabbinate [26] at 639) and to property rights (HC 249/64 Baruch v. Customs and Duty Supervisor [27] at 489; Aviel [23] at 595). This line of case law led to increased protection of individual freedom. The legislature’s empowerment was generally interpreted as permitting the violation of individual freedom only if its expression was specific, clear and unequivocal, i.e. where the legislation determined that the administrative agency was entitled to restrict a particular occupation. This was interpreted as empowerment for administrative regulations that also included the power to establish primary arrangements. See Miterani [2] at 358-59.       

31.  The second period began with the promulgation of the Basic Laws regarding human rights and their interpretation in the United Mizrahi Bank case [16].  In fact, with the enactment of the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation, there was a substantial change in the status of the human rights that were entrenched in these laws.  They received a super-legal constitutional status. United Mizrahi Bank [16]; HC 3914/92 Lev v. Tel-Aviv-Jaffa Regional Rabbinical Court [28] at 503; HC 453/94 Israeli Women’s Network v. Government of Israel [29] at 526; HC 5394/92 Hopert v. “Yad Vashem," Holocaust Memorial Authority [30] at 363; HC 726/94 Klal Insurance Company. v. Finance Minister [31] at 465; HC 1255/94 “Bezeq," Israeli Telecommunications Company, v. Communications Minister [32] at 680; HC 5319/97 Cogan v. Chief Military Attorney [33]; HC 1064/94 Computest Rishon LeTzion (1986) Ltd. v. Minister of Transportation [34] at 814; CA 239/92 “Egged” Transportation Cooperative Society v. Mashiach [35] at 71; HC 4541/94 Miller v. Defense Minister [36] at 110, 131. In fact, following the adoption of the two Basic Laws regarding basic rights and the meaning given to them in United Mizrahi Bank [16] Israeli law was constitutionalized. See F. Raday, Chukatizatzia shel Dinei Haavodah [Constitutionalization of Labor Law] [86]; R. Ben-Israel, Hashlachot Chukei Hayesod al Mishpat Haavodah Vimaarechet Yachasei Haavodah [Implications of Basic Laws for Labor Law] [87]; A Yuran, Hamahapacha Hachukatit Bimisoi Biyisrael [Constitutional Revolution of Tax] [88]; A. Barak, Hakonstitutzionilazatzia shel Maarechet Hamishpat Biakvut Chukei Hayesod Vihashlachoteha al Hamishpat Haplili [Constitutionalization of the Legal System – Criminal Law] [89].  Constitutional rights are reflected (directly or indirectly) in all areas of law. See Lev [28] at 503. In one case, I addressed the meaning of the term “constitutionalization”:

The significance of constitutionalization is that every branch of law and every legal norm is influenced by the constitutional arrangements regarding human rights. The constitutional human rights are reflected in all branches of law and influence every legal norm.

CrimApp 537/95 Ganimat v. State of Israel [37] at 421.

 

And in the United Mizrahi Bank case [16] I stated:

Israeli law has been constitutionalized, and human rights are reflected in all branches of law (public and private) and influence their substance. Whereas in the past human rights were derived from the arrangements extant in the various areas of the law, now the same areas of law are derivatives of the constitutional human rights.

Id. at 447.

 

   These changes affect the legal status of the “basic rule," according to which primary arrangements must be set out in legislation. For the purposes of the case at bar we need not dwell on the entire scope of these changes, for the Defense Minister’s authority at issue is based upon legislation that preceded the constitutional changes, the validity of which is maintained as part of the old law. Hence, we have no need to adopt a position regarding the relationship between the exercise of the Defense Minister’s authority and the rights entrenched in the Basic Laws. Suffice it to note that the constitutional laws respecting human rights fortify the basic rule. This fortification is expressed by an interpretative presumption that the law did not intend to vest the executive branch with additional power to establish primary arrangements. Hence, the statutory power to prescribe primary arrangements in administrative regulations remains in force and its validity is not impaired. New Basic Laws, according to their interpretation in the United Mizrahi Bank case [16] cannot detract from the validity of existing legislation. Even so, in the absence of any contradictory provision, an interpretative effort must be made, where possible, to give this empowerment a restricted interpretation, so that it will be exercised, wherever possible, in a manner consistent with the basic rule governing primary arrangements. In this vein, there are cases in which the executive branch must refrain from making substantive decisions on basic social issues which are the subject of sharp public controversy. It must leave these decisions to the Legislature. For example, the matter of deferring the enlistment of women whose service during a particular year is not required is left to the Defense Minister’s discretion.  The decision will be a pragmatic one, based on the needs of a particular year, as such a decision will not seek to resolve the fundamental issue of the nature of women’s service in the military, which is the subject of a fierce public controversy.  Thus, the Minister is not empowered to adopt a decision by virtue of which women as such, or married women, or women whose religious convictions prevent them from serving in the defense service, are to be exempted from serving in the military.  This is a matter for the Knesset, which must determine, as part of the social resolutions that it is charged with, the State’s position on that matter. Indeed, the Knesset adopted this path regarding the exemption of married women (sec. 39 of the Defense Services Law) and that of women requesting an exemption for reasons of religious convictions (sec. 40).  The same applies to deferral of service for men. Where the considerations [underlying a particular decision] are practical – pragmatic, dynamic – the Defense Minister can make such a decision.  However, when the consideration is one relating to resolving a sharply disputed general social issue, the matter must be dealt with via a primary arrangement in legislation.  More specifically, the position we are adopting does not preclude the executive authority from determining general policies regarding the exercise of its powers. Generally speaking, it is both permissible and desirable that the executive branch set out general guidelines. Our position is simply that there are certain, special issues regarding which the executive authority is not endowed with the power to adopt fundamental decisions on fundamental issues that divide society. There are matters that the Knesset must resolve. Regarding these matters, the executive must be satisfied with determining the policy for implementation. Practically speaking, this means that, in general, the Court will give a limited construction to the powers that the law grants the executive branch. This has been the practice of the Courts in those legal systems in which this basic rule has constitutional status and not just interpretative status. Regarding the approach adopted in the United States, Kischel wrote the following:

 

The question whether a delegation is so broad that its constitutionality becomes doubtful, depends first on an interpretation of the exact scope of the statutorily conferred powers. Here it is of course possible for a court to accept a very broad interpretation, and to then declare even this maximum to be constitutional. Today, however, the Court takes the opposite path. The Court circumvents possible delegation problems by making a narrow interpretation of statutory language, thus using the delegation doctrine as an Ashwander like principle.

Kischel [97] at 222.

 

The Courts in Germany adopted a similar approach. Id. at 232. We, too, have followed this approach, incorporating the law established in Ashwander v. Tennessee Valley Authority (1936) [63]. Accordingly, all legitimate interpretative efforts must be made to avoid a law’s invalidation.  This rule was cited by President Shamgar in United Mizrahi Bank [16] at 350, stating that “when the validity of a law … is being adjudicated, even where there is serious doubt as to its legality, the central guiding rule is that the Court must first examine the possibility of a reasonable interpretation, by which it can avoid having to decide the question."  This Court has practiced this interpretative approach of statutory construction. HC 4562/92 Zandberg v. Broadcasting Authority [38] at 810, 814, 815; HC 7111/95 Center of Local Government v. The Knesset [39] at 496; HC 5503/94 Hofnung v. Speaker of Knesset [40] at 67; HC 5503/94 Segal v. Speaker of Knesset [41]; HC 450/97 Tenufa Manpower and Maintenance Services  Ltd. v. Minister of Labor and Welfare [42].  Needless to say, this approach is possible only where the statute’s language permits such a narrow construction.  The statute’s text cannot be forced, nor can interpretative rules be distorted. However, within the framework of accepted interpretative principles, the interpretative option that is consistent with the basic rule regarding primary arrangements should be selected.

 

From the General to the Specific

The Defense Services Law sets forth the duty of defense service (regular service or reserve service). It establishes the duty’s scope and the modes of fulfilling it. Together with these provisions, it also establishes the Defense Minister’s authority to defer service or grant an exemption. He may do so:

[F]or reasons related to the size of the regular forces or reserve forces of the Israel Defense Forces or for reasons related to the requirements of education, security settlement, or the national economy or for family or other reasons…

Sec. 36 of the Defense Services Law.

 

Is the Defense Minister authorized to exercise his authority and grant a deferral to full-time Yeshiva students of the dimension and scope which such deferrals have reached today? This question turns on the division of powers between the legislative and executive branches.  It goes to the issue of whether establishing principles and criteria respecting the social issue of service deferral for full-time Yeshiva students is the Legislature’s exclusive province, a matter that it alone should determine as part of the primary arrangements that it must establish.

33.  The question is not a new one for us. President Landau dealt with it in the petition concerning service deferral for full-time Yeshiva students preceding the Ressler [1] case. In dealing with a request for a further hearing, President Landau raised the issue of  “whether the matter required … a specific statutory resolution, pursuant to a comprehensive debate in the Knesset, precluding its resolution in an administrative decision of the Defense Minister, or by way of a government decision in its executive capacity as part of implementation of a coalition agreement.” He noted that “this is an argument … that, to my mind, is worthy of being heard.” FH 2/82 Ressler v. Defense Minister [43] at 711-12.  This having been said, he did not rule on the issue, for it had not been discussed in the judgment regarding which the petition for a further hearing had been filed, nor was it included in the petition for a further hearing.

34.  Ressler [1] discussed this question. In my judgment, I mentioned that the Rule of Law dictated that “primary arrangements” ought to be specifically prescribed by statute, and that the executive branch should not be endowed with general empowerment to independently establish primary arrangements. Ressler [1] at 502. I added that:

[I]t is desirable that by force of the principles underlying a “true parliamentary democracy,” the Knesset should adopt a specific position regarding the issue of deferring the enlistment of Yeshiva students, and not be satisfied with the general, across the board, empowerment of the Defense Minister to grant enlistment deferrals “for other reasons” …

Id. at 502.

 

This having been said, I emphasized that “I am not convinced that the Knesset’s failure to establish primary arrangements and its failure to supervise the arrangements established by the Defense Minister means that such general empowerment is invalid.” Id. I noted that the “other reasons” need not necessarily be security-related, and they extend to non-security based considerations, which in my opinion also include religious reasons. Id. at 502-03. In a later judgment, I cited Ressler [1], stating:

Our lives are replete with issues that in the past were anchored in administrative regulations but ought to be regulated by legislation. Suffice it to mention the issue of the Yeshiva students’ enlistment in the military.  It was argued before us that the latter issue, being an important one, ought to be regulated in legislation. Even so, we held that the absence of primary arrangements in legislation does not invalidate the administrative regulations in this matter.

Horev [6] at 76.

 

Thus, there is already a previous ruling in this matter.  The question before us is whether the new circumstances, both factual (relating to the increase of the number of Yeshiva students whose enlistment was deferred and the broadened scope of those entitled to a deferral) and legal (the strengthening of the interpretative power of the basic rule), justify reaching a different conclusion. In Ressler [1], the Court stressed that “quantity becomes quality.” Id. at 505. How do all of these affect the question currently confronting us? I will now proceed to examine this issue.

35. My point of departure is that, following the Ressler [1] case, the power granted to the Defense Minister to defer military service for “other reasons” also included the power to defer full-time Yeshiva students’ defense service.  Admittedly, the Defense Services Law does not set forth any criteria regarding how that power is to be exercised. We are therefore confronted with an extreme case of delegation of power to the executive branch, without the legislation containing guidelines for the Defense Minister with respect to the primary arrangements. In interpreting this provision today, I accept that, as a matter of principle, the Defense Minister is entitled to defer the defense service of full-time Yeshiva students. Even so, the exercise of discretion must be done with cognizance of the basic rule concerning primary arrangements. This is an interpretative principle that affects the considerations to be taken into account by the Defense Minister.  The interpretative conclusion dictated thereby is that the scope of the Defense Minister’s discretion is within the framework of the basic rule. He is authorized to grant a service deferral to full-time Yeshiva students, but this decision must be part of a national decision adopted by the Knesset, relating to the State of Israel’s position regarding the disputed social issue of granting service deferrals to full-time Yeshiva students.  A fundamental decision of this nature must be a parliamentary decision, not just a decision made by the Defense Minister. The Defense Minister’s discretion must be exercised regarding these particular issues, within the context of a fundamental Knesset decision.

The National Decision

36.  Granting enlistment deferrals to full-time Yeshiva students is a subject of controversy in Israel, and there is no national consensus on the matter. The dispute is not just between the observant and the non-observant. Within the religious camp itself there are many and varied views.  I referred to this in Ressler [1]:

There are those who maintain that the State could not exist without deferring their enlistment and those who maintain that the State cannot exist without their enlistment. Some see the deferral of their service as a noble act while others perceive it as vile. There is no social consensus on the matter.

Id. at 505.

 

    Far from being exclusively ideological, the rift in question involves a clash between various human rights. On the one hand, there is the ideal of equality, dictating that all of the members of society must contribute equally to its security. The current situation, in which a significant portion of these individuals of service age do not risk their lives for the security of the State is very discriminatory, engendering deep feelings of exploitation amongst those who serve.  Indeed, equality is “the very soul of our entire constitutional regime.” See Justice Landau’s comments in HC 98/09 Bergman v. Finance Minister [44] at 698. It is a principle “that pervades our legal thinking, forming an integral part thereof.” HC 114/78 Borkan v. Finance Minister [45] at 806 (Justice Shamgar’s opinion).  Thus, Deputy President Elon was correct in stating:

[T]he principle of equal rights and obligations for all of the State of Israel’s citizens is part of the State of Israel’s very essence.

EA 2/88 Ben Shalom v. Central Elections Committee for the Twelfth Knesset [46] at 272; See also his opinion in HC 153/87 Shakdiel v. Minister of Religious Affairs [47].

 

In another case, I noted:

 

[E]quality is a basic value in any democratic society, ‘which the law of any democratic society attempts to realize, for reasons of justice and fairness …’ The individual becomes part of the entire social fabric; he or she shares in building the society, in the knowledge that others, too, are acting as he does. The need to ensure equality is endemic to human beings; it is based on considerations of justice and fairness. A person desiring the recognition of his or her rights must recognize the rights of others to seek similar recognition. The need to maintain equality is critical for society and for the social agreement upon which it is based. Equality protects the government from caprice. In fact, there is no factor more destructive to a society than the feelings of its members that they are being dealt with unfairly. The feeling of inequality is a particularly harsh one. It undermines the unifying forces of the society. It damages the personal identity of a human being.

Poraz [18] at 332.

 

On the other hand, we have the rights relating to freedom of religion. This freedom includes, inter alia, the right to fulfill religious commandments and requirements.  It has been argued that the forced enlistment of full-time Yeshiva students may violate their freedom of religion and is liable to offend their religious feelings, which must also be taken into account. See Horev [6].

37.  The issue of enlisting full-time Yeshiva students is not merely an ideological one, in which human rights clash with each other. In Israel, it has become a major social problem. Full-time Yeshiva students whose enlistment has been deferred are not permitted to work. The material opportunities at their disposal and at their family’s disposal are meager, and poverty is their fate.  They are not absorbed into the work force. Even those who leave the arrangement are not absorbed into the workforce, for fear of being drafted into the military, and idleness is the mother of all sin. This creates an entire population, which is not incorporated into the work force, with the subsequent increase in poverty and reliance upon allocations both from the State and private sources.  A social problem of the first degree has thus arisen.

38.  The enlistment of full-time Yeshiva students also creates a complex social-military problem. This problem regards military considerations relating to the integration of these enlistees. Is it desirable for the military to enlist these Yeshiva students? Is it efficient to enlist them? Would it be efficient to enlist some of them, for example those found fit for military service, or those who do not remain in the Yeshiva framework? If we decide that their enlistment is not efficient, then what weight attaches to that consideration when compared with the other considerations, which we dealt with?  Quite frequently, the military enlists draft candidates despite the fact that the expected effectiveness of enlisting them is low, and even particularly low. It does so for a variety of reasons. Should a similar approach be adopted for the issue at bar? Is there any possibility of increasing the effectiveness of their service by preparing special structures for Yeshiva students? Is that effort worth it, in light of the Yeshiva students’ life style?

39.  The solution to these problems is by no means simple, because they raise fundamental social and military problems.  Our approach is that this sort of penetrating national question must be resolved by the legislative branch, the Knesset. This is the only way of expressing “the optimal national consensus that will facilitate communal life ...” See the comments of my colleague, Justice Or, in Mitral [15] at 498. This is the only way of “… examining the issue in all its aspects, considering the different alternatives.” HC 355/79 Katalan v. Prison Authority [48] at 303. Hence, it follows that the Knesset cannot “pass the buck” to the Defense Minister, so to speak. Instead, it must resolve the issue statutorily. This is how a legal system faithful to the doctrine of separation of powers operates, in which the Rule of Law is maintained and where the democratic principle constitutes part of the “genetic code of all of the binding norms in Israeli Law.” See the comments of my colleague, Justice Cheshin, in Nevuani [12] at 121. Needless to say, we do not adopt any position regarding the substantive questions requiring answers, and the enumeration of the various social options does not constitute the adoption of any position as to their legality. Examination of that would be done in accordance with the constitutional framework within which these social arrangements are established.

40.  Is our approach consistent with the Defense Minister’s power to defer enlistment for “other reasons?” Here, we are confronted with an interpretative problem. We must interpret the Defense Minister’s power against the backdrop of the need to bring to fruition, by way of interpretation, the basic rule regarding primary arrangements. Such interpretation leads us to the conclusion that the Defense Minister’s powers ought to echo the difficult social decisions adopted by the Legislature. It is not for the Defense Minister himself to arrogate the power to make this decision. Indeed, the ideological-social problem regarding the enlistment of full-time Yeshiva students and the various solutions thereof must be resolved through the legislative activities of the branch which, in a democratic system such as ours, deals with such problems. This is not the executive branch.  In Israel, it is the legislature.

41.  Is our conclusion consistent with our decision in Ressler [1]? It seems to me that we may answer this question in the affirmative.  In Ressler [1] we emphasized that “quantity becomes quality.” Id. at 505. Since rendering our decision in Ressler [1], the arrangement’s dimensions have expanded, to the extent of becoming a national problem. It was not presented to us as such back in Ressler [1]. Hence, our attention then was directed primarily at the issues of standing and justiciability. The actual problem of enlisting Yeshiva students was not presented to us as a national problem of urgent importance. Since then, there has been an increase in the number of Yeshiva students whose military service has been deferred, and the trend indicates a continued rise.  There is reason to assume that it will continue to increase in the future. There have also been changes in the kind of enlistees who are granted the service deferral.  Hence, the arrangement has been broadened to include those who did not study in a Yeshiva High School, but rather those who studied in a regular religious high school and whose matriculation examinations included Talmud at the level of five units. The arrangement was also broadened to include the newly penitent.  It was further broadened so as to include not only full-time students, but also those whose professions, which were also their livelihood, is teaching Torah.  There is a point at which the large quantity of those included in broad sections of military candidates becomes a qualitatively different category. Furthermore, since our decision in Ressler [1], there has been a substantive change in our conception of our constitutional structure. The basic rule regarding primary arrangements has been reinforced, which in turn affects the interpretation of the power statutorily conferred on the Defense Minister by the Defense Services Law and the understanding of the case law that interpreted that power. The strength of the basic rule has increased together with the interpretative weight attaching to it when interpreting the Defense Minister’s powers. All of these constitute “new circumstances,” which justify a new interpretation of the old power. In any event, I am convinced that the current situation requires the Legislature to adopt a legislative solution, in view of the increasing numbers of full-time Yeshiva students receiving a military service deferral, which ultimately leads to a full exemption. This is done against the backdrop of the rift in Israeli society over the question of the deferral of military service for full-time Yeshiva students; against the backdrop of the legal problems and the serious social and ideological problems at their base; and in view of the need to provide a comprehensive national solution. All of these necessitate parliamentary intervention in order to provide a solution to this serious problem.

42.  We have concluded that the service deferrals for full-time Yeshiva students as currently granted by the Defense Minister are illegal.  In view of this conclusion, it is unnecessary to adopt a position regarding the manner in which the Defense Minister’s discretion is exercised. Suffice it to say that the Defense Minister’s discretion, as evidenced by the factual foundation presented before us, is problematic: it is unclear whether the security consideration is the dominant one, and there is cause for concern that, due to the massive increase of those receiving service deferrals and the addition of new categories of recipients of service deferrals, the zone of reasonableness has been overstepped, in terms of the quantity making quality (Ressler [1] at 505) and in terms of the weight that ought to have been accorded and which was not accorded to the principle of equality. However, as stated, since we have decided that the Defense Minister is not authorized to make a fundamental decision in this matter, we need not address the question of whether he legally exercised his discretion.

The Remedy

43. Our conclusion is that, in the present situation, the Defense Minister exercises his discretion in granting service deferrals to full-time Yeshiva Students in accordance with a principled decision that should be made by the Knesset. Consequently, the current exercise of power is illegal. Accordingly, decisions adopted by the Defense Minister regarding service deferrals for Yeshiva students were illegally adopted. Even so, there is no pragmatic way, overnight, to alter a situation that has endured for so long. The Defense Minister or the Knesset should be allowed to conduct a serious and organized discussion regarding the entire issue and all of its ramifications. Moreover, if a decision to alter the current situation is made, the necessary framework should be established. It is impossible to adopt an alternate arrangement from one day to the next. In these circumstances, there is no way of immediately ruling that the current arrangement is invalid. We must postpone the impat of our decision. With respect to our authority to do so, we mentioned in another case that:

“Our power to postpone the date upon which the declaration of invalidity goes into effect is well founded ... in comparative law. A similar power is given to a court that declares legislation invalid…

...

A similar law applies in Israel. Needless to say, this court will make use of its power to postpone only in special cases that warrant it.” HC 1715/97 Investment Managers’ Bureau v. Finance Minister [49] at 416.

The case at bar warrants the use of the said power. Having considered the period of the delay, we have reached the conclusion that the appropriate period of postponement is twelve months from the day this judgment is rendered, i.e. until December 9, 1999.

Consequently, the matter is decided as per section 43 of the judgment.

Deputy President S. Levin

I agree.

Justice T. Or

I agree.

Justice E. Mazza

I agree.

Justice I. Zamir

I agree.

 

Justice D. Dorner

I  agree.

Justice J. Türkel

I agree.

Justice D. Beinisch

I agree.

Justice I. Englard

I agree.

Justice M. Cheshin

The phenomenon is as old as the State itself. It is the deferral of and exemption from military service granted to full-time Yeshiva students. This exceptional phenomenon has accompanied us over the years and is a source of dissatisfaction for many people. How is it, they ask, that part of the population bears the yoke for the collective, while another part is exempt from bearing that yoke, yet benefits from the burden that others bear on their shoulders? Is this right and appropriate in a society in which all are supposed to be responsible for each other?  Many have not come to terms with this unique state of affairs, and hence, the issue has reached the High Court of Justice.  The Court has addressed petitions regarding the deferral/exemption of military service for Yeshiva students on at least five occasions, each time dismissing the petitioners empty-handed.

2.    In the beginning, the issue was raised in the High Court of Justice in HC 40/70 Becker v. Defense Minister (hereinafter- Becker [50]). That petition argued that 5,000 Yeshiva students had been released from military service. The petitioner requested that he, too, be released from the period of his military service equivalent to the period that had been added to his service, due to the exemption of 5,000 Yeshiva students. The Court did not even trouble the respondent's lawyer to appear before it to explain why certain things had happened and why other things had not happened. Instead, it decided to reject the petition outright, by reason of the petitioner’s lack of standing and the injusticiability of the subject.

Justice Witkon characterized the petition as a “collective public petition,” and for that reason, he held that that there was no cause for addressing it. Justice Witkon stated, inter alia, that the Court must be careful “…not to be dragged into the general, public debate which is entirely a dispute on its own merits. It is preferable that it be left in the hands of the political elements responsible for it … this clearly being a political issue, there is reason to apply a stricter application of the requirement that the petitioner have standing ….” For his part, Justice Y. Kahn concurred with Justice Witkon’s reasoning, adding that “it is well known that the reason given for granting service deferrals to Yeshiva students is the need to preserve the institutions in which Torah is studied, after the destruction of such learning centers during the Holocaust.” Id. at  249.

I confess that, even when the judgment was rendered, it made no sense to me. The statement that the subject is of “a clearly political nature” and that the Court ought therefore to distance itself from it, was as difficult for me to understand then as it is today.  Is serving in the I.D.F. a political issue? Did the Court think that political agreements as such could exempt the youth from serving in the I.D.F.?  Furthermore, had the issue been one of an exemption for 50,000 Yeshiva students, would the Court have maintained its position? And if, in the latter case, a different answer had been given, then does the “character” of the subject change from political to non-political, purely on the basis of the number of those benefiting from the exemption/deferral?  With respect to the (additional) reasoning of Justice Y. Kahn regarding what is termed the preservation of the burning embers [preservation of tradition – ed.], I say that even if we presume that Justice Kahn was correct in assuming that we are charged with the national task of restoring and rejuvenating the Torah Study centers that were destroyed, are we not still justified in examining the propriety of benefiting so many Yeshiva students, 5,000 specifically, by granting the exemption/deferral? Would it not have been appropriate, at least, to hear the respondent's opinion on the matter? We all know that a judgment of this nature could not be handed down today, and personally, I think that even at that time, the judgment was exceptional and extreme.

3.    The issue of granting exemptions/deferrals to Yeshiva students was once again presented to this Court in HC 448/81 Ressler v. Defense Minister [51], and, once again, the petition was rejected. The Court relied on the Becker [50] decision and decided to dismiss the petition for essentially the same reasons that Becker [50] was dismissed. To quote Deputy President Kahn: “In my opinion, the petitioners have not succeeded in establishing their right of standing, which would justify this Court actually deliberating on the petition, which on its face appears to be non-justiciable.” Id.at 86. He added that “…the petition before us cannot be upheld, for its subject is not amongst the matters that can be adjudicated by a Court. The question of whether or not to enlist full-time Yeshiva students is one on which the Court lacks any legal standards upon which to base a judicial finding. Id. at 88. Deputy President Kahn added:

 …even if the petitioners were to prove with signs and wonders (and as I said, I do not think that such proof can be made) that their reserve duty would decrease as a result of the enlistment of Yeshiva students, I would not see this as providing cause for issuing an order nisi. The issue of whether or not to enlist Yeshiva students is essentially a public problem, the resolution of which must be left to the political elements, whose task it is to decide these issues. The arrangement of deferral of service for Yeshiva students has existed since the establishment of the state, and the respondent has not made any significant change in the matter.

Id.

Deputy President Kahn further said:

 The petition clearly evidences an effort to drag this Court into a public-political debate regarding a sensitive and volatile issue, regarding which there are serious differences of opinion in the public at large.  The petitioners cannot succeed, due to their lack of standing, the fact that the subject is non-justiciable, and the fact that they have shown no cause for this Court’s interference with the exercise of discretion that was conferred on the respondent by the legislature.

Id. at 89.

In this case, too, no one was summoned from the State Attorney’s office to explain what (in my opinion) ought to have been explained.  Today we know (from the information provided by the State Attorney’s office) that at that time there were more than 11,500 Yeshiva students who were benefiting from the exemption/deferral.

I confess that I find this ruling particularly difficult, and I found it difficult at the time it was rendered.  I am prepared to agree that the issue is a public, political one. I am also prepared to agree that the issue is sensitive and explosive. I will further agree that the matter is the subject of serious public controversy.  I agree to all of these, but I still find it difficult to understand why those particular factors have the effect of locking the gates of the Court, at a time when it is claimed that the Defense Minister is making arbitrary use of his power and illegally exempting thousands of Yeshiva students from service. Is the statement that the issue is “political” a magic word that closes gates? Can this statement shelter the Defense Minister, allowing him, albeit indirectly, to systematically and sweepingly breach the law, with none of us, the people of the law, having anything to say?  Is there no real legal aspect to the Defense Minister’s activities? The judgment in HC 448/81 [51] was handed down at the end of December, 1981. We all know that no more than six months later, the Yeshiva students’ contemporaries went to war, some of them never to return.

4. The petitioners in HC 448/81 [51] did not give up and requested a further hearing in FH 2/82 [43]. President Landau’s decision signaled a fresh approach. First of all, the President ruled that the petitioners’ locus standi had been proved, even if only for the reason that an “entire additional division” could be created from the aggregate number of draft candidates who benefited from exemptions and deferrals from military service. Even so, President Landau denied the petition due to it not being justiciable, albeit he did so reluctantly. Finally, President Landau mentioned the claim that had been raised, that the issue of the deferral/exemption “required a specific legislative resolution, following a comprehensive Knesset debate” and that “"it could not be resolved via the Defense Minister’s administrative decision nor by a Government decision in its executive capacity, seeking to implement a coalition agreement.” Id. at 711-712. Referring to this claim, President Landau opined that in his view “it ought to be heard,” but that given that there hadn’t been any ruling in the case that was the subject of the further hearing, it could not serve as the foundation of the further hearing. The claim was dismissed, but the seed was planted. Years would pass until the seed would begin to mature, and now it has sprouted from the ground.

5.    Ressler and his companions were not deterred. About one month after the decision in their petition for a further hearing, they filed a new petition: HC 179/82 Ressler v. Defense Minister [52]. However, this petition, too, was rejected due to the petitioners’ lack of standing.

6.    Thus, we arrived at the next Ressler case, namely HC 910/86 Ressler v. Defense Minister, IsrSC 32(2) 441.  This time, the Court held that the petitioners had standing and that the question of exempting Yeshiva students is one that should be heard on its merits. Having reached this conclusion, the Court reviewed the Minister’s discretion, and decided the two following points:  First, that the Defense Minister had been statutorily endowed with the discretion to grant a deferral/exemption to Yeshiva students. Second, that the Defense Minister had not exceeded the zone of reasonableness. At the time, over 17,000 Yeshiva students benefited from the exemption/deferral. We should recall that sixteen years prior to the Ressler case, there were 5,000 Yeshiva students affected, and five years prior thereto, the number of those receiving the deferrals/exemptions was 11,500.   Nevertheless, the Court opined that the number of those receiving releases from military service did not deviate from the statutory parameters established for the Defense Minister’s discretion. Even so, Justice Barak wrote to add the following:

 In balancing the various considerations forming the basis for the Defense Minister’s discretion under section 36 of the statute [the Defense Services Law [Consolidated Version] 1986] the determining consideration must be that of security. It was for that purpose that the Defense Services Law was enacted and some of the exemptions from military service are formulated in that spirit ¼ at the end of the day, there is significance to the number of Yeshiva students whose enlistment is deferred.  There is a limit that no reasonable Minister of Defense may exceed. Quantity becomes quality. In this matter the petitioners have not discharged their burden of showing that the harm to security is not minor.

Id. at 505.

     And further on (at 506-07):

…if the number of those whose service is deferred by reason of Torah study continues to increase until it includes a very large number of men of military age, to an extent that harms security, the moment will surely arrive when it will be said that the decision to defer enlistment is unreasonable and must be canceled.

President Shamgar added to this (at 525-26):

 ¼what we now determine regarding the legal validity of the arrangement, when it is subjected to substantive judicial review for the first time, does not exempt the Executive from the duty of periodically continuing to examine and reexamine the significance of granting an exemption to increasing numbers of men of military age.

¼ therefore, we are not speaking of static data but rather of facts which change and which are updated on a yearly basis. This means that it is incumbent upon the authorized body to examine the data annually and state its opinion concerning the ramifications of the data, against the background of other considerations.

 When I read the judgment at the time – a judgment that is both brilliant and unique for its addition to the doctrines of standing and justiciability – I had considerable difficulty with it. I asked myself whether an interpretation of the Law, under which the Defense Minister is authorized to exempt over 17,000 youths from military service could be appropriate. Is it appropriate that so much authority be concentrated in the hands of one person, the Defense Minister, even with the Government’s consent, and indeed under its orders?  Is an interpretation of the Law according to which the Defense Minister is endowed with such far-reaching powers consistent with the main principles of a parliamentary democracy, or if you prefer, of a Jewish democratic State?  This question has haunted me, unceasingly, since then, perhaps even from the time of Becker [50].  

Primary Arrangements and the Interpretation of Law

7.    My colleague, the President, rules that, in a social framework governed by the Rule of Law in its substantive sense; in a society in which governmental powers and the power to coerce are divided between the legislative and executive branch; in a society in which human rights are at the pinnacle; in these social-governmental frameworks, first principles unequivocally instruct us that the broad exemption granted to Yeshiva students must be prescribed by statute. I unreservedly concur with the words of my colleague.

            For my part, I will add that this conclusion, which derives from the roots of our society and government, is also mandated by virtue of the Defense Services Law, from the time of its enactment (in 1949 and in its current form, [Consolidated Version] 1986) and from the legal infrastructure upon which it rests. The Defense Services Law [Consolidated Version] rests upon two foundations. The first – the principle that those reaching military age are subject to military service, including both regular and reserve duty.  The second – the principle that the Defense Minister is empowered to grant an exemption from military duty, to reduce the period of service, or to defer service. With respect to all of these, section 36 of the Defense Services Law states:

 

Authority to  exempt   from or to defer

36. The Minister of Defense may, if he sees fit to do so for reasons related to the size of the regular forces or reserve service forces of the Israel Defense Forces or for reasons related to the requirements of education, security settlement or the national economy or for family or other reasons do the following, by order: (1)  exempt a person of military age from regular service duties or reduce the period of his service; (2)  exempt a person of military age from reserve duties for a specific period or totally; (3)   by virtue of an application made by a person of draft age or a person designated for defense service other than a person of draft age, defer by order for a period prescribed therein, the date of reporting prescribed for that person, under this Law or regulations hereunder, for registration, medical examination, defense service or, if he has already begun to serve in the defense service, the continuance thereof.

 

To complete the picture, I will cite section 55 of the Law, under which an order pursuant to section 36 of the law can be “personal or for a particular class,” distinct from orders issued under other provisions of the law which can be general, for a particular class, or personal. 

I will also mention section 54(a) (opening section) of the law under which the Defense Minister may delegate his powers under section 36 of the law to another person. The Defense Minister exercised this power and delegated his authority to exempt men of military service from regular service and to reduce or defer the service period for a long list of positions: Assistant to the Defense Minister, the Chief of the General Staff, Deputy Chief of General Staff [… ed.]. All these positions are specified in the notification of delegation of authority published in the Official Gazette No. 202 (Nov. 4, 1997).

8.    We can all agree that the basic duty of men of military age to serve in the military, in regular or reserve duty, must be prescribed by statute. The duty to serve in the military is like the obligation to pay taxes, and we would never agree, nor would it even occur to anyone, to impose it by force of administrative regulations, irrespective of how lofty the executive power creating the regulations may be (obviously this does not refer to emergency legislation). Thus, when it became clear that there was a lacuna respecting men of military age’s duty to serve, this is to say complete regular service for a period of 36 months, the Knesset responded immediately and amended the Defense Services Law [Consolidated Version] and specified in the Law itself that the period of service was 36 months. See Defense Services Law [Consolidated Version] (Temporary Provision), 1995; Bill for Defense Service Law (Amendment 6) 1994; Defense Services Law [Consolidated Version] (Temporary Provision) (Amendment) 1997; A Rubinstein, The Constitutional Law of the State of Israel [72] at 828-29.

Personally, I have found no operative distinction between the general obligation, in principle, to serve in the military and the general exemption, in principle, from service in the military. If the general obligation, in principle, to serve in the military can only be imposed by statute, then a general exemption, in principle, from military service must also find its place in legislation. An example of this is found in section 40 of the Defense Services Law [Consolidated Version] under which an exemption is granted to a woman of military age who declares in writing that reasons of religious conviction prevent her from serving in the military service and that she observes Jewish dietary laws at home and outside and does not travel on the Sabbath.  The same applies to the case at bar. The authority granted in section 36(1) of the Defense Services Law [Consolidated Version] "to exempt someone of military age from regular service, or to reduce the period of service," is no more than the authority to issue individual orders: to Rueben, to Simon, to Levi, to Yehuda. The Defense Minister was not endowed with the authority to issue a general exemption.

The Knesset signed a sovereign order establishing mandatory military service. In signing that order, in essence, the Knesset gave public notification that the cancellation of that order, either partially or completely, was exclusively within its authority. The one who prohibits is the one who can permit [in Jewish tradition – ed.].

9.    Even so, just as we cannot accept that the Knesset can establish a basic obligation of defense service whereas the Defense Minister – and not the Knesset – is endowed with the authority to abrogate that basic obligation either partially or otherwise, so too, for reasons of efficiency, it is inconceivable that the legislature be charged with issuing individual exemptions from military service. Consequently, the Knesset delegated the power to issue personal exemptions to the Defense Minister.  Then, with the Knesset's approval, the Defense Minister delegated this power to various position-holders. However, a normative exemption, an exemption from service to a very large section of the population, is a power that the Knesset reserved for itself. Any other interpretation given to the law will inevitably lead us to the conclusion that all the Defense Minister’s delegates also have the authority to grant a general exemption from military service. It is clear that the Defense Minister is not authorized to delegate normative power to various position-holders, and this interpretation of the law is unacceptable.

10.  The current Defense Minister, like all his predecessors in successive Israeli Governments since 1977, did not take care to ensure that he acted exclusively within the parameters of his statutorily-determined authority. Instead of granting exemptions to Rueben and Simon, to Levi and Yehuda, or having his agents do so, the Defense Minister took the normative step of granting a general exemption to Yeshiva students. The Defense Minister was not authorized to do so, and neither were the Defense Ministers who preceded him. His actions were ultra vires with respect to his legally conferred powers.

Just as the authority to issue general orders does not include the authority to issue individual orders, so too, the authority to issue individual orders does not include the authority to issue general orders.  In this context we wrote in LCrim. 1127/93 State of Israel v. Klein [53] at 510:

…the power to enact regulations must be distinguished from the power to issue individual orders. An agency’s power to enact regulations, as such, does not include the power to issue individual orders. This is certainly true in the reverse situation, to the extent that the power to issue individual orders does not encompass the power to enact regulations. By its very nature and essence, a regulation is a piece of [administrative – ed.] legislation with independent standing, and it is not equivalent to the sum total of individual orders that could have been legally issued during the same period of time. By its very nature, a statutory order carries more weight than any number of individual orders that may be issued from time to time. Consequently, it should be regarded as a single act, which cannot be divided into parts (i.e. individual orders). For the same reason, because the respective nature of the powers is inherently different, the power to issue statutory orders does not include the power to issue individual orders.

11.  To sum up this point: upon closer examination of the exemption/deferral arrangement currently open to Yeshiva students, there can be only one inescapable conclusion: Yeshiva students are granted an automatic exemption/deferral provided that they are full-time students (we are not concerned here with the faulty supervision over compliance with this condition, which is the necessary and sufficient condition for the exemption/deferral). These exemptions/deferrals have the Defense Minister’s blessing (supposedly) in accordance with section 36 of the Defense Services Law when, in fact, this statute does not endow him with the authority to grant the exemptions that he grants in practice. The Defense Minister has the authority to grant individual exemptions from service, but the situation at hand is one in which the Defense Minister is granting a general exemption to Yeshiva Students.  In doing so, the Defense Minister exceeds his authority and the exemptions/deferrals granted are void.

Just as the Defense Minister would not have the authority to exempt “agriculturists” from regular or reserve duty, so too he does not have the authority to create the exemption – deferral for Yeshiva students – that he purports to do. Furthermore, from the arrangement as presented to us, it is clear that the Defense Minister does not consider individual applications for an exemption-deferral. Instead, the arrangement operates autonomously, without the need for anyone’s assistance to implement it. In so doing, the Defense Minister greatly exceeds the authority with which he was endowed.

12.  My position is therefore that a "universal," normative exemption from military service must have a statutory basis, and the Defense Services Law [Consolidated Version] does not empower the Defense Minister to exempt Yeshiva students from military service exclusively by virtue of their being Yeshiva students.

Quantity and Quality

13.  My colleague, the President, states that quantity becomes quality, and the conclusion is therefore that since the last Ressler [1] case, we have progressed from the quantitative stage to the qualitative stage. Personally, the issue of quantity alone is sufficient for me – a small quantity, a medium quantity, and a large quantity. There are quantities that are de minimus and there are quantities that we cannot ignore. It is not the straw that breaks the camel’s back, but rather the burden already on his back prior to that straw being placed there. It would seem that the deferrals/exemptions granted to 17,000 Yeshiva students, as presented to the Court in the last Ressler [1] case, were already too much. However, even if this was not our view, this is definitely the case today with respect to the 29,000 Yeshiva students receiving exemptions/deferrals.

14.  Let me clarify and explain. I did not say, and I will not say, that studying in a Yeshiva is not an appropriate reason for receiving a service deferral.  This was the ruling in the last Ressler [1] case and I accept that view entirely. This would also be the law if it were decided to grant a service deferral in order to enable computer studies, the study of engineering or any other profession that was deemed important to the military and the State.  Both of these are problematic in the case at bar (both theoretically and substantively-legally). First, there is no limit on the number of deferrals granted, whether a priori or post factum. That is how the quantity grew to its current dimensions. Second, the deferrals became, and are in fact, exemptions.  Hence, for full-time Yeshiva students, a priori, the issue is not one of service deferral but rather of exemption from service. "Torah as a way of life" has come to mean and is coming to mean, de facto and ex ante, not just deferral of service but rather exemption from service. The routine has become ingrained, to the point where it has become an accepted way of life

It has reached the point where the exemption-deferral is regarded as an  inseparable, integral part of the life of the society and state, as if the burden of proof lay with those claiming that the Minister of Defense acted illegally, in an ultra vires manner. In our view, the reverse is true.

In the Future

15.  With respect to the future, administrative regulations cannot, in the normative sense, provide Yeshiva students with an exemption from military service. We all agree on this point.  Personally, I will not reach the issue (which we were not asked to decide) of whether legislation passed by the Knesset could exempt Yeshiva students from military service. There are those who would argue (and I will not elaborate) that even a Knesset statute would not be sufficient. It could further be argued that even a Basic Law would not be sufficient. There are limits to the Knesset’s legislative powers (see my comments in United Bank Hamizrachi  [16]). The saving of a life overrides the prohibition on doing work on the Sabbath. Tractate Shabbat [a]. Some say that even when it is uncertain whether a life is at stake, the prohibition is to be overridden. Jerusalem Talmud, Tractate Yoma [b]. We should remember that we are concerned with no less than saving lives.

Justice T. Strasberg-Cohen

I concur with the judgment of my colleague, President Barak, as well as with the comments of my colleague, Justice Cheshin.

Decision of the Court

The Court  ruled in accordance with the judgment of President Barak.

Decided today, December 9, 1998.

 

CA 2833/04

 

Regis Ltd.

v.

Gabriel Trabelsi CPA, Trustee for Dan Rolider

 

 

The Supreme Court sitting as the Court of Civil Appeals

[3 August 2009]

Before Justices M. Naor, E. Arbel, E. Rubinstein

 

Appeal from the judgment of the Haifa District Court in Bankruptcy File 66/02 of 23.2.2004 (Judge G. Ginat) of 23 February 2004.

 

Facts: The respondent company, Dan Rolider Ltd., purchased heavy engineering equipment from the appellant, Regis Ltd., and agreed that a charge would be placed upon the equipment in favor of the appellant. The appellant failed to register the charges with the Registrar of Companies within the statutory 21 days. The appellant defaulted on its debt to the respondent, the CEO and controlling shareholder of the appellant company died, and an application was made to liquidate the company. Following the application for liquidation of the company, the respondent filed an application with the Registrar of Companies to extend the period for the registration of the charges, pursuant to s. 191 of the Companies Ordinance. The request was granted, and the Registrar issued registration certificates to Regis pursuant to s. 185 (a) of the Companies Ordinance. The appellant therefore claimed that it was a secured creditor in regard to the charged equipment, whereas the trustee appointed to liquidate the respondent company dismissed this claim. The District Court ruled that once the Registrar had issued a registration certificate, the charge was to be regarded as having met all the requirements of s. 178(a) of the Companies Ordinance with respect to the date of registration. The court therefore rejected the trustee’s claim regarding the invalidity of the charge vis-à-vis third parties. Nevertheless, the court ruled that the registration of the charge was void due to it being a fraudulent preference, within the meaning of s. 98 of the Bankruptcy Ordinance  and s. 355 of the Companies Ordinance.

Held: The Court denied the appeal. Justice M. Naor (Justices E. Arbel and E. Rubinstein concurring) differed in her opinion regarding fraudulent preference from that of the District Court , and ruled that the case did not involve “unlawful pressure or persuasion on the part of that creditor or on his behalf” under s. 98 of the Bankruptcy Ordinance. However, the Court nonetheless decided to deny the appeal, as it held that a charge that was registered late could not be validated for three reasons: First, as a rule, the registration of a charge should not be allowed after the commencement of liquidation proceedings, because once the liquidation has commenced, the parties’ expectations crystallize, and a charge that harms those expectations should not be recognized. Secondly, allowing the late registration of a charge, following the commencement of liquidation proceedings, undermines the goals of registration. Finally, the late registration of a charge after liquidation proceedings have commenced should not be recognized in the case at hand for reasons of good faith at the time of registering the charge and because of the delay involved in registering the charge. .

 

 

Israeli Supreme Court cases cited:

[1]   CA 2734/92 Iskoor Steel Services Ltd. v. Liquidator of Elkol Ltd. (in liquidation) [1992]  IsrLR  46 (4) 289.

[2]   CA 315/89 Bialostotzky Ltd. v. Graph Paper (Industries) Ltd. (in liquidation) [1991] IsrLR 45(1) 698.

[3]   CA 4548/91 Emek Hayarden Farms Central Agricultural Cooperative Society Ltd. v. Haspaka Central Company for Agriculturalists Ltd. (in liquidation) [1999] IsrSC 53 (4) 8.

[4]   C.A. 6/89 Israel Discount Bank Ltd. v. Maof Airways Liquidators Ltd. [1994] (not reported).

[5]   LCA 1096/97 Abu Juba v. Feiman Ltd. [1999] IsrLR 53(1) 481.

[6]   CA 4351/01 Liquidator of C.A. Food Company Ltd.  v. State of Israel, Department of Customs and V.A.T. [2005] IsrSC 60(1) 467.

[7]   CA 126/89 Liquidator of Koppel Tours Company Ltd. v.  Dan Hotels Company Ltd. [1992] IsrSC 46(3) 441 

[8]   CA 558/88 Itung Ltd. v. Levi David and Sons Ltd. (in liquidation) [1994] IsrSC 48(2) 102.

[9]    CA 1689/03 Israel Credit Cards Ltd.. v. Official State Receiver [2004] IsrSC. 58(6) 126.

[10]      CA 5789/04 Hamashbir Hayashan Ltd. v. Logistiker Ltd. (2007) (not yet reported).

[11] CA 2070/06 Equipment and Construction Infrastructures Ltd. v. Receiver (2008) (not yet reported).

[12] CA 6400/99 Mirage Construction and Investments Company Ltd. v. Hapoalim Bank Ltd. [2002] IsrSC 56(4) 830.

[13] CA 4316/90 Haspaka Central Company for Agriculturalists Ltd. (in liquidation) v. Agra-Even Yehuda Cooperative Agricultural Society Ltd. [1995] IsrSC 49(2) 133.

[14] CA 790/85 Israel Airports Authority v. Gruss [1990] IsrSC 44(3) 185.

[15] CA 2641/97 Ganz v. British and Colonial Company Ltd. [2003]  IsrSC 57(2) 385.

[16] HCJ 566/81 Amrani v. Rabbinical Court of Appeals (1982) (unreported).

[17] CA 610/94 Buchbinder v. Official Receiver [2003] IsrSC 57(4) 289.

[18] CA 6416/01 Benbenisti  v. Official Receiver [2003] IsrSC 57(4) 197.

[19] LCA 6339/97 Roker v.  Solomon [1999] IsrSC 55(1) 199.

[20]      HCJ 164/97 Conterm Ltd. v. Minister of Finance, Department of Customs and V.A.T. [1998] IsrSC 52(1) 289.

[21] LPA  426/06 Hava v. Prison Service (2006) (not yet reported).

[22] HCJ 987/94 Euronet Golden Lines (1992) Ltd. v. Minister of Communications [1994] IsrSC 48(5) 412.

[23] CA 8434/00 Delek Israel Gas Company Ltd.. v. Gazit and Shaham Construction Company [2002] IsrSC 57(3) 693.

[24] CrApp 2236/06 Hamami v. Ohayon (2006) (not yet reported).

[25] CA 839/90 Raz Building Company Ltd. v. Erenstein [1991] IsrSC 45(5) 739.

[26] CA 603/71 Bank Leumi LeIsrael Ltd. v. Land of Israel-Britain Bank [1972] IsrSC 26(2) 468.

[27]      CA 181/73  Shtukman v. Spitani [1974] IsrSC 28(2) 182.

[28]      CA 248/77 Hapoalim Bank Ltd. v. Garburg Ltd. [1977] IsrSC 32(1) 253.

Israeli District Court cases cited:

[29] CApp (T.A.) 19875/05 (BR 1795/05) 19875/05 (BR 1795/05) Council for Production and Marketing of Plants v. A.S. Li Growing, Selecting and Marketing of Agricultural Produce (in temporary receivership), (2006) (not yet reported).

[30] CApp (T.A.) 1355/03 (BR 2118/02) Trustee of the Rubenenko Group v. Department of Customs and V.A.T. [ 2003] (not reported).

[31] M (T.A.) 8663/91 (CC 1247/88) Crates Center Ltd. v. Industrial Development Bank of Israel Ltd. [1993] IsrDC 5754 (1) 68.

[32] M (Dis-T.A.) 14564/89 (CC 511/88) Liquidator of Razmig – Tires Marketing Company v. Bukshpan [1991] (not reported).

[33] AC (Dis-Jer) 43/92 Hapoalim Bank Ltd. v. Tadmir Feed Mix Institute Cooperative Agricultural Association Ltd. (in liquidation) [1993] IsrDC 5754 (1) 379.

 

Israeli laws cited:

Companies Ordinance [New Version], 5743-1983, s. 179 (a)(1)

Bankruptcy Ordinance [New Version] 5740-1980

 

 

For the Appellant — M. Azura; V. Gwilli-Zolman

For the Respondent — R. Rogin

 

 

JUDGMENT

 

Justice M. Naor

Should a charge registered late, after the commencement of liquidation proceedings of a company, be deemed valid? This is the question that arises in this appeal.

1. The respondent, Dan Rolider Ltd. (hereinafter: “the Company”), over whom the respondent was appointed as a trustee, purchased heavy engineering equipment from the appellant, Regis Ltd. (hereinafter: “Regis” or “the appellant”). The purchases were made on various dates: 18.6.2000; 24.8.2000; 15.4.2001. The Company gave an undertaking to charge the purchased equipment to Regis. The charge documents were deposited with Regis, but Regis did not send the documents to the Registrar of Companies and therefore the charges were not registered at the Registry within 21 days of their creation, pursuant to s. 179(a)(1) of the Companies Ordinance [New Version], 5743-1983. Some time later, the Company encountered financial difficulties and failed to pay its debts to Regis (or to others). The Company CEO and controlling shareholder, Dan Rolider, passed away. On 27 December 2001 an application to liquidate the Company was filed. The application was published and proceedings commenced for an operating arrangement in the framework of a stay of proceedings order. At this stage, and following the publication of the application, on 2 January 2002, Regis filed an application with the Registrar of Companies to extend the period for the registration of the charges, pursuant to s. 191 of the Companies Ordinance. In the application, it explained that “due to our having received the equipment in two separate consignments, an error occurred and the charges were not registered with the Registrar of Companies, despite the fact that the form had already been prepared when the equipment arrived.” The Registrar of Companies extended the period, and the charges were registered at the beginning of January 2002, between the date of filing the application for liquidation and the stay of proceedings order. The Registrar of Companies gave Regis certificates, pursuant to s. 185(a) of the Companies Ordinance. Regis claims — and this is the focus of the appeal before us — that it is a secured creditor in relation to the equipment that was charged as stated. As per the agreement between the parties, the court gave its approval for the trustee to sell the heavy engineering equipment, and the dispute over the question of whether Regis was a secured creditor was transposed from the equipment to the consideration paid.

2.    Regis filed a debt claim for failure to make the payments for the equipment as prescribed in the sale agreement, for a principal of NIS 1.5 million. As stated, Regis claimed that it was a secured creditor in relation to the charged equipment. The trustee did not deny that the Company had given an undertaking to Regis to register the charge, but claimed that the charges had no validity vis-à-vis the trustee: all the charges were registered long after the twenty-one day period prescribed for the registration of a charge in s. 179 of the Companies Ordinance; and the extension granted by the Registrar ex parte, without Regis having even notified him of the filing for liquidation, was invalid. Some of the charges were registered, as stated, several days after the filing for liquidation, and others were not registered at all, because — as claimed by the Registrar — Regis had been registered (mistakenly) in them as “the borrower” and not as “the lender”. The trustee’s decision to dismiss Regis’s claim that it was a secured creditor was appealed by Regis in the District Court.

3.    The District Court judge (Hon. Judge Ginat) dismissed the trustee’s claim regarding the significance of non-registration of the charge within twenty-one days of its creation. The trustee sought to rely on s. 178 of the Companies Ordinance, whereas the court relied on the decision in CA 2734/92 Iskoor Steel Services Ltd. v. Liquidator of Elkol Ltd. (in liquidation) [1], and ruled that once the Registrar had issued a registration certificate, the charge was to be regarded as having met all the requirements of s. 178(a) of the Companies Ordinance with respect to the date of registration. The court therefore rejected the trustee’s claim regarding the invalidity of the charge vis-à-vis third parties. The court effectively ruled that claims pertaining to the laws of registration of the charge should not lead to non-recognition of the charge.

4.    Nevertheless, the court ruled that the registration of the charge was void due to it being a fraudulent preference, within the meaning of s. 98 of the Bankruptcy Ordinance [New Version], 5740-1980 and s. 355 of the Companies Ordinance.

 Section 98(a) of the Bankruptcy Ordinance states:

98(a) Every transfer of property or charge, however made, every obligation incurred, and every judicial proceeding taken or suffered, by a person unable to pay his debts as they become due from his own money, in favor of a creditor or of a trustee of any creditor, with a view to giving such creditor or any guarantor of the debt due to such creditor, a preference over other creditors, or in response to undue pressure or persuasion by or on behalf of such creditor if such person is adjudged bankrupt on a bankruptcy application presented within three months after the date of making, incurring, taking, or suffering as aforesaid, shall be deemed fraudulent and void as against the trustee.’

‘Voidance of Preference

And s. 355(a) of the Companies Ordinance provides:

355(a) Any transfer, mortgage, delivery of goods, payment, execution or any other act in relation to assets — which, if committed by or against a person would be deemed in his bankruptcy a fraudulent preference—, when committed by or against a company — shall be deemed in the winding up a fraudulent preference of its creditors, and shall not be valid; for the purposes of this section, the beginning of winding up shall replace the application for bankruptcy.’

‘Fraudulent Preference

5.    The court gave the following reasons for its conclusion that the charges were invalid under the sections cited: the debts between Regis and the Company, in accordance with which the Company had undertaken to charge the equipment, were admittedly authentic and not fictitious, but fraudulent preference relates precisely to real debts that have become due, and which, by law, the debtor is obligated to pay and the creditor is entitled to collect. Fictitious debts are void debts, in respect of which there is no need to resort to the rules of specific voidance under s. 98 of the Bankruptcy Ordinance, or s. 355 of the Companies Ordinance. Fictitious debts may be voided under the general law, irrespective of the three month time period or the company’s ability to pay its debts. Preference of creditors under the aforementioned sections may, in principle, also find expression in the upgrading of a creditor’s status. The registration of a charge in a company’s favor at a time of insolvency may be regarded as fraudulent preference in precisely the same way as would the payment of a sum of money where no valuable consideration was given. A debtor’s intention of fraudulently preferring (“with a view to giving preference” in the words of s. 98) is just one of the alternatives that leads to a declaration of a payment as being a preference that must be voided. Section 98 also recognizes a preference grounded in “pressure or unlawful persuasion” on the creditor’s part, and the court ruled that this indeed was the case at hand. Applying pressure, or unlawful persuasion, may in and of themselves be legal. In our case, the court added, registration of the charge was a legal act. Both by virtue of its contract with the Company and by virtue of the laws of registration, Regis was legally entitled to register the charge. However, in the court’s view, the execution of the registration within the “prohibited” three months called for an examination of whether the registration took place in the regular course of business, or whether the act of registration was intended to “pressure” the Company into upgrading the status of Regis at the time of insolvency. Regarding this matter the court ruled that for purposes of fraudulent preference, it is desirable and appropriate to determine that the arrangements that are applicable at the time of insolvency and in anticipation of liquidation, should also apply as of the crystallization of an application for a stay of proceedings. However, in this case the liquidation application against the Company was pending as of 27 December 2001, and therefore the court ruled that  the charge was in any event executed during the “prohibited period”. Note, incidentally, that it emerges from the written pleadings that the liquidation order was ultimately issued on the basis of a later application, after the efforts to rehabilitate the Company in the framework of a creditors’ settlement failed, but all the insolvency proceedings took place consecutively.

6.    The court concluded that it was both appropriate and desirable to determine, under the circumstances, that the date of the transaction would be considered as the date on which the charges were registered (at the beginning of 2002), i.e., the date on which they entered into effect regarding third parties, and not the date on which they were created. However, the charges were registered during what the court as referred to as the “prohibited period”. The court relied on the decision in CA 315/89 Bialostotzky Ltd. v. Graph Paper (Industries) Ltd. (in liquidation) [2], and clarified that if the charges had been registered within 21 days of having been created, the registration would have gone into effect retroactively, in accordance with the aforementioned ruling. However, if the charge was registered late, as in the case at hand, it does not come into effect from the date of its creation, but only from the date of its registration. In that regard the court noted that a decision to recognize a charge registered belatedly, during the prohibited period, as being in effect from the registration date so that the date on which the transaction was executed for purposes of fraudulent preference would be the date on which the charge was perfected, prevents a situation of preferential transactions by a consensual delay in the registration, to enable the company to present a better financial situation. The court summed this up as follows:

‘24. Regis acquired a legal right to request the extension of the registration in order to upgrade its status to that of a secured creditor, or more precisely — to upgrade its status in relation to all the creditors by way of registration, seeing as it already had status as a secured creditor of Rolider from the date of the agreement, and as such it remained. This right, when exercised within the prohibited period, after a period of almost two years during which Regis did nothing to secure the debt, its sole purpose being to create an advantage over other creditors, does not satisfy the condition of s. 355 of the Companies Ordinance and s. 98 of the Bankruptcy Ordinance, insofar as it constituted “unlawful pressuring” of Rolider. Nor can we accept Regis’ claim that regarding the date of the execution of the charge transaction (in accordance with the date of the creation of the charges), and in circumstances in which the charge was registered late, the rule in Bialostotzky Ltd. v. Graph Paper (Industries) Ltd. [2] ought to be interpreted such that the date of the transaction will be the date of the perfection of the charge in relation to third parties (i.e. the date of its registration). The operative result of my decision is that the trustee’s decision of 29 August 2002 remains intact, meaning that Regis is not to be regarded as a secured creditor with respect to the funds that were received from the sale of the presses.’

7.    Regis has appealed this ruling before us. It claims that the ruling in Bialostotzky Ltd. v. Graph Paper (Industries) Ltd. [2] concerning the retroactive effect of a charge from the date of its creation and not of its registration should not be interpreted as applying only to a case in which the charge was registered within twenty-one days of its creation. The creation of the charge preceded the “prohibited period” thereby preventing, according to Regis, the cancellation of the charge. Once the charge has been registered, even if late, its legal standing is that of a charge duly registered on time, and no distinction should be made between a charge registered on time and a charge registered late. Regis stresses that no other property right was created between the date of the creation of the right and the date upon which the charge was registered, so that there was no violation of any right that was “in competition” with Regis. In any event, the regular creditors cannot presume that no charge will be registered at a date later than the date of their creditorship.

8. Regis further claims that this is altogether not a case of fraudulent preference: the act of registration was effected solely by the creditor (Regis) based on real time documents in its possession, whereas the Company did not undertake any additional act. As such, Regis did not “pressure” the company into “preferring” it.

9.    The trustee endorses the decision of the District Court. According to the trustee, after the process of liquidation has begun, transactions in the property of the Company cannot be allowed without court approval. Since no such approval was forthcoming in our case, registration of the charge is not valid. The trustee adds that when Regis requested and received the extension from the Registrar, it did not disclose the fact that an application for liquidation had been filed and that the Company was collapsing. Had the Registrar known these facts he would not have granted the extension. The trustee is therefore entitled to claim in the liquidation court that the extension is void regarding him. The trustee claims that Regis registered the charges in a completely improper manner. Granting Regis the status of a secured creditor would lead to its preference even over other preferred creditors, including debts for workers’ wages, debts to income tax and other debts with priority status. The trustee also endorses the decision of the court with regard to fraudulent preference.

Deliberation  

10.  Before addressing the substance of the matter I wish to clarify that one of the arguments raised by the parties does not require our resolution: Was the trustee obliged to file a separate proceeding on his own behalf, requesting that the liquidation court invalidate the late registration of the charge, by reason of its being (so he claimed) a fraudulent preference and because the Registrar should not have granted an extension after the beginning of the liquidation, or can this question be clarified in the course of the hearing of the creditor’s request to be recognized as a secured creditor? In my view, we should take the bull by the horns and examine whose right takes preference: the right of the creditor whose charge was not registered on time, i.e., within the twenty-one days mentioned in s. 179(a)(1), and which was actually registered only after the filing of the liquidation application, or the right of the insolvent company and its creditors.  In other words, our concern is with the validity of the charge, both in terms of the laws of charges and the laws of insolvency. In the matter before us nothing prevents the issue of the validity of the charge being resolved by the liquidation court, and the decision of the Registrar cannot be the final word with respect to the  liquidator, who was not a party to the extension proceeding, and when in any event, “s. 185 confers the status of conclusive proof of the fulfillment of all of the requirements relating to registration and not to the validity of the charge (Iskoor v. Elkol [1], at p. 297C; see also the comments of Judge D. Keret-Meir in CApp (T.A.) 19875/05 (BR 1795/05) Council for Production and Marketing of Plants v. eGrowing, Selecting and Marketing of Agricultural Produce (In Temporary Assets Receivership) [29], at para. 4(b). 

11.  The matter before us is located on the “seam” between the laws of charges (including the laws of the registration of charges) and the laws of insolvency. Were it not for the insolvency, there would have been nothing preventing (in this case) the registration of the charge, even if late. There were no later charges and there is no conflict of rights between competing charges. As such, in my view, the solution to the question I posed must be found on the seam between the laws of charges and those of insolvency. The dividing line between them is not always clearly demarcated, and the comments of Professor Lerner in this context are particularly apposite, as though they were written specifically in reference to our case:

‘That the border between the laws of insolvency and the laws of charges is a difficult one to demarcate is also evident in the case-law ruling that unregistered charges are invalid at the time of the company’s liquidation, and secured creditors who did not perfect their right will be regarded only as regular creditors’ (Shalom Lerner, Charging of Company Assets (1996), p. 26).

Indeed, in our case I have reached the conclusion that validity cannot be conferred on a charge registered late, after the commencement of the liquidation proceedings, and the appeal should thus be denied.  My path to that conclusion differs from that of the District Court. The District Court ruled that under the laws of charges the charge should be validated, but under the laws of insolvency which prescribe the invalidity of transactions involving fraudulent preference, Regis cannot be accorded the status of a secured creditor. In my view, our case does not involve fraudulent preference and in that respect my view differs from that of the District Court.  However, my position regarding the holding that the charge should be validated differs from that of the District Court as well, and so, at the end of the day, the result is that the appeal must be dismissed. I will explain below.

12.  First, I wish to explain why I believe that the District Court should not have ruled as it did regarding fraudulent preference. Section 98(a) of the Bankruptcy Ordinance prescribes four cumulative conditions for the determination that a case is one of fraudulent preference (see Shlomo Levin and Asher Grunis, Bankruptcy (2^nd ed., 2000) at p. 329; Irit Haviv-Segal, Corporate Law in Israel – After the New Companies Law, vol. 2 (2004) at p. 288):

(a) The acts took place within the three-month period that preceded the filing of the bankruptcy application;

       (b)        The acts were executed for the benefit of a creditor or his trustee;

(c) The acts were executed for the purpose of giving preference to that particular creditor, or to the person who guaranteed his debt, over other debtors, or by reason of unlawful pressure or persuasion on the part of that creditor or on his behalf.

(d) At the time of the act, the debtor was unable to pay his debts from his own money upon their becoming due.

13.  It seems to me that in our case there is no dispute regarding the conditions specified in items (b) and (d) above.  Item (a) will be resolved in accordance with the answer to the question of whether the charge should be viewed as having come into force on the date of its creation or on the date of its registration. Without ruling on the matter, I am prepared to assume that the District Court was correct in ruling that the determining date was the registration date (unless the charge was registered within twenty-one days of its creation, in which case it will be viewed as having retroactive effect, in accordance with the rule in Bialostotzky Ltd. v. Graph Paper (Industries) Ltd. [2]). The District Court cited in this regard an explanation mentioned in the legal literature, to the effect that such recognition of the determining date (as being the registration date) will prevent dubious deals between the holder of the charge and the debtor, in which the charge would not be registered so as not to prejudice the company’s ability to raise funds. As noted by Professor Lerner:

‘In jurisprudential literature, the issue of invalidation of transactions is accorded an additional purpose — as a barrier against the conferral of concealed rights. For example, the concealment of a charge may mislead potential creditors and assist the company in presenting its financial position as being better than it is in reality. In order to prevent an agreement between the debtor and the creditor to create a charge and defer its registration to a later date, the law allows the liquidator of a company to petition for the cancellation of a charge that was registered just prior to the time of liquidation. It is for this reason that with respect to the laws of cancellation, the execution of the transaction is identified with its perfection regarding others, and not with the conclusion of the agreement. The secured creditor is thereby given a double incentive to register the charge in his favor without delay: the fear of the creation of an additional charge on the same asset, and the possibility of challenging the charge at the time of liquidation. The goal of preventing the concealment of charges is therefore one that is common to the two sets of laws: the laws of charges and the laws of insolvency’ (Lerner, at p. 427).

As noted by the District Court, this question is one of legal policy. In our case I am not required to rule on the question, for even if the determining date was the date of registration of the charge, and the charge was not “immune” to cancellation in any event due to fraudulent preference, in our case it would still not be possible to cancel the charge by virtue of the laws of fraudulent preference. I will now address this issue.

14.  Regarding the question of fraudulent preference, the crux of the appeal is the third condition specified above, and in greater detail in Regis’s argument that the case did not involve “unlawful pressure or persuasion on the part of that creditor or on his behalf.” It will be recalled that in this case the court did not invoke the alternative of “in order to give priority to a particular creditor” but rather the alternative of “pressure” referred to in s. 98 of the Bankruptcy Ordinance. My view is that the District Court “stretched” the expression “pressure” beyond its linguistic limits, and beyond the situation of “pressure” as in the case-law ruling in a similar case.

15.  Under the present circumstances, the act of registration was executed entirely by the creditor (Regis) and not by the Company. In executing the registration Regis did not require the assistance of the debtor, as it was already in possession of all the charge documents. A matter similar to the one before us arose in CA 4548/91 Emek Hayarden Farms Central Agricultural Cooperative Society Ltd. v. Haspaka Central Company for Agriculturalists Ltd. (in liquidation) [3]. The Court ruled there that in terms of the sections pertaining to fraudulent preference, there was nothing unlawful about acts of assignment of the right of a creditor of the company to its debtor which resulted in the litigating societies having a right of set off against the company in liquidation. The Court explained that the assignment of a right does not require the debtor’s consent, and the act of setting off is a unilateral legal act which is perfected upon giving notice of the set off. These acts were executed by the creditors of the company in liquidation and not by the company itself. In our case, the District Court, as stated, based its decision on the alternative provided by s. 98(a) of the Bankruptcy Ordinance, under which there had been “unlawful pressure or persuasion”. In this regard the court relied on the judgment of Judge Alshich in CApp (T.A) 1355/03 (BR 2118/02) Trustee of the Rubenenko Group v. Department of Customs and V.A.T. [30], whereby the court decided not to recognize a charge on the company assets created by the Tax Authority during the prohibited period. The Tax Authority is able, by law, to upgrade its standing from that of a regular creditor to that of a secured creditor, and it did so in the prohibited period. The District Court ruled that inasmuch as the charge was registered on the eve of the company’s collapse and its entry into the stage of a stay of proceedings, the act constituted the exercise of a right with the express intention of gaining priority over the other creditors, and this constituted fraudulent preference. The test, according to the decision in Rubenenko v. Department of Customs and V.A.T. [30], was whether the act fitted into the regular course of business between the creditor and the debtor or whether it deviated therefrom with the aim of “upgrading” the creditor vis-à-vis all the other creditors, without value having been given in consideration. The court in Rubenenko v. Department of Customs and V.A.T. [30] noted that the tax authorities were obligated to make use of the tool they had been given to upgrade their status lawfully and in good faith, and that the prohibition against according preference to creditors on the eve of a company’s collapse is a general principle. It also ruled that upgrading the status a few days before the collapse of the company, when the tax authorities were aware of the position of the company, might expose it to the logical presumption that this was an act of “pressure” applied by the tax authority to cause the debtor to pay his debt, and its intention was solely to gain preference for itself over the debtor’s other creditors. This is the natural and necessary meaning of the registration of a charge just before the company’s collapse.

16.  The District Court’s comments in Rubenenko v. Department of Customs and V.A.T. [30] were, as stated, endorsed by the court in the judgment forming the subject of appeal before us, which held that the registration of the charge constitutes “pressure” or “persuasion”, as it is not an act performed in the regular course of business. I see no need to take a position on the question that has not arisen before us — concerning the duties incumbent upon the tax authorities, which are public authorities, with respect to  the other creditors. However, I am unable to concur in the conclusion that Regis’ actions in our case fall into the category of “pressure”. The comments of this Court in Emek Hayarden v. Haspaka [3] are apposite here, concerning the alternatives of pressure or persuasion:

‘Haspaka further argued that the case falls into the category of section 98 of the Ordinance, in the Bankruptcy Ordinance Amendment Law 5743–1983. That is to say: the act was done “or in response to undue pressure or persuasion by or on behalf of such creditor” Indeed, the aforementioned amendment broadened the laws of fraudulent preference by also enabling the invalidation of actual acts of preference carried out without intention on the debtor’s part to prefer the creditor. As indicated by the Explanatory Note to the Bankruptcy Ordinance Amendment Bill, 5741-1981, which added this amendment, “It is proposed that a transfer of the bankrupt’s property, which is unlawfully received by a creditor by way of collection of his debt involving coercion or temptation, should be equated to the fraudulent preference of a creditor and will likewise be invalid with respect to the the trustee (ibid, at pp. 155-156). Justice Bein in CA 1621/92 and Justice Strasburg-Cohen in CA 767/93 correctly stressed the existence of two foundations included in the aforementioned paragraph: one – the act was unlawful and a set off — assuming it was executed lawfully — is the legitimate way of paying debts. The other – even when there is undue pressure, the act must be committed by the debtor himself and not only by his creditor. Haspaka argues that the section refers to the act of surrendering to a legal proceeding, and that in the matter at hand, it surrendered to the legal proceedings instituted by the Associations. This situation, it was claimed, is analogous to the failure to file a statement of defense against a statement of claim. It was likewise claimed that the result of the set off was that Haspaka had actually paid its debt to the factories, and by doing so committed an act of fraudulent preference. These arguments disregard the unilateral character of acts of setting off. Not contesting a claim or actively paying a debt is not the same as a debtor passively standing by while the act of setting off is being carried out’ (ibid., p. 18).

Further on, the court in Emek Hayarden v. Haspaka [3] explained that the scope of s. 355 of the Companies Ordinance could not be extended to include acts of a creditor in which the company played no part (see also Levin and Grunis, at pp. 329, 332 and 338). In our case Regis registered the charge based on signed documents that had long been in its possession. Therefore, and notwithstanding my assumption that in terms of the dates, the laws of fraudulent preference are applicable to this case, they cannot be applied in the concrete circumstances of this case, which fail to meet the conditions specified in s. 98(a) of the Bankruptcy Ordinance or the alternative relied upon by the District Court (“undue pressure or persuasion”) as explained in Emek Hayarden v. Haspaka [3]. In other words, even in a case of “undue pressure”, an act must be performed by the company itself, and in absence of such an act on its part, there can be no “fraudulent preference”.

17.  This concludes our comments regarding fraudulent preference. As mentioned, my view on this matter differs from that of the District Court, but the matter does not end here. We must consider whether in our case, we can validate a charge registered late, after the commencement of the liquidation proceedings. I would answer this question in the negative, for three reasons. First, for the reason that as a rule the late registration of a charge should not be allowed after the commencement of the liquidation proceedings; secondly, because allowing the late registration of a charge, following the commencement of liquidation proceedings, undermines every one of the goals of the registration; and thirdly, for reasons of good faith at the time of registering the charge and because of the delay involved.

Liquidation Proceedings

18.  As stated, the District Court concluded that the charge in the case at hand was valid, despite having been registered after the beginning of liquidation proceedings, in reliance on Iskoor v. Elkol [1]. However, in Iskoor v. Elkol [1], the question of the status of a charge registered after the commencement of liquidation proceedings was explicitly left undecided. In fact, the question in Iskoor v. Elkol [1] was different. At the very beginning of the decision, Justice S. Levin stated that “the question that arises in these appeals is what validity a charge created by the company has — regarding the liquidator —a, when the particulars of the charge were submitted for registration after the passage of twenty-one days from the date of its creation; and which, even though no application for an extension of the registration date was submitted, was registered by the Registrar, and a certificate of registration of the charge was issued, well before the commencement of liquidation proceedings against the company” (ibid, at p. 291 para. d) [emphasis added]. Thus, the charge in Iskoor v. Elkol [1] was indeed registered late, but the registration was effected “well before the commencement of liquidation proceedings”. This is not so in the case before us, in which not only was the charge registered late, but it was registered after the commencement of liquidation proceedings. Consequently, the rule laid down in Iskoor v. Elkol [1] does not govern our case. To be precise: the Iskoor v. Elkol [1] ruling stresses that the registration was indeed late, but that it occurred before the commencement of the liquidation (this expression appears repeatedly, see paras. 10, 11, and 12) and Justice Levin even states that he is not deciding on a situation in which the charge was registered after the commencement of the liquidation (see para. 7). In Iskoor v. Elkol [1], therefore, no ruling was made on the validity of a charge registered late after the commencement of liquidation proceedings, but the general thrust of the judgment seems to be that validity should not be conferred on such a charge (as opposed to a situation in which the charge was indeed registered late, but “well before the commencement of liquidation proceedings, ”in which case it should be deemed valid). As noted by Professor Deutch:

‘A special question arises when the Registrar issues the certificate after the commencement of liquidation proceedings, whereas the charge itself was created before the commencement of those proceedings. The court [in Iskoor v. Elkol — M.N.] did not decide on that situation, but it is clear that it deemed it possible that the situation under those circumstances would differ from what it was in the case at hand [when the registration was executed well before the commencement of liquidation proceedings — M.N.] (Miguel Deutsch, Property, vol. 1, 162, n. 111 (1997) (hereinafter: Deutsch, vol. 1).

And Professor Lerner wrote:

‘The court in Iskoor v. Elkol [1] refrained from expressly stating its position on  the matter, but from reading the decision it emerges that the court would not have been inclined to grant the secured creditor a similar extension after the commencement of the liquidation. A similar approach finds expression in the ruling of the District Court [ … ]. According to this approach, the status of the creditors — as regular or secured — is determined at the commencement of the liquidations, i.e. at the time of the submission of the liquidation application’ (Lerner, at p. 350).

19.  Indeed, if the charge was registered within the time specified in s. 179 of the Ordinance, i.e., within twenty-one days of its creation, it would be valid (in terms of the laws of charges), even if an application was filed in the meantime to liquidate the company. In other words, if the charge was created before the application for liquidation, and its registration was executed after the application but before the passage of the twenty-one days prescribed in s. 179, the charge would be valid (CA 6/89 Israel Discount Bank Ltd. v. Maof Airways Liquidators Ltd. [4], at para. 5). The basis for this rule is that although the charge was registered after the submission of the liquidation application, it was within the twenty-one day period specified in s. 179. In our case, however, the registration took place after the submission of the liquidation application and considerable time after the twenty-one days. What is the law in such circumstances? In my view, it should be decided that the charge is invalid. After the liquidation has commenced, the parties’ expectations crystallize, and a charge that harms those expectations should not be recognized. When the liquidation began, there was no valid charge in favor of the appellant, and therefore, after the commencement of the liquidation, the charge that was registered late should not be deemed valid. This point was elucidated by Prof. Cohen:

‘In my view the date for registration of charges should not be extended after the beginning of the liquidation. The liquidation crystallizes the rights of the parties, as they were at the time of its commencement, and these rights should not be changed by registration at a later date’ (Tzipora Cohen, Liquidation of Companies (2000) p. 582).

Instructive comments in this context were also made by Professor Deutch:

‘It is clear that the commencement of bankruptcy or liquidation proceedings against the mortgagee crystallizes the picture of the conflict, such that the registration of a pledge after that stage will not usually lead to the proprietary preference of the mortgagor over other creditors (Miguel Deutch, Property vol. 2 (1999), p. 143 (hereinafter: Deutch, vol. 2)).

The issue was also addressed by Professor Lerner:

‘The meaning of the retroactive application of the liquidation is that the division of the company’s assets amongst the various creditors will take place in accordance with the state that existed when the liquidation application was filed. Any act done thereafter, even if the company was not partner to it, will not change the manner of allocation that existed at the beginning of the liquidation’ (Lerner, at p. 446).

20.  In his book, Prof. Lerner presents both the English caselaw that negates the possibility of extending the date for registering the charge after the filing of the application for liquidation of the company, as well as the Australian caselaw which does not regard the application for liquidation as an exclusive consideration, but he immediately adds that “nevertheless, there would not be a significant gap between the two approaches in practice, since only rarely would the court extend the registration date when a request to liquidate the company had already been filed (Lerner, p. 351) (emphasis added). In Israel, the extension is at the discretion of the Registrar of Companies, and according to Prof. Lerner, “particular care” is required concerning the question of extending the date for registration of a charge after liquidation proceedings have commenced; in his view, “it is doubtful whether it is desirable to leave a quasi administrative-judicial authority such as the Registrar broad discretion after liquidation proceedings against the company have begun” (ibid). Prof. Deutch similarly notes that “it is doubtful whether the period can be extended, when in any case the company is going through liquidation proceedings” (Deutch, vol. 2, p. 132) and that “it is doubtful whether the Registrar of Companies is authorized to extend the date for the registration of a charge against the company, after the commencement of liquidation proceedings, when the charge was not registered on time” (Deutch, vol. 2, p. 143, n. 373). The fact that in England, “the homeland of our Companies Ordinance” (in the words of Justice Goldberg in LCA 1096/97 Abu Juba v. Feiman Ltd. [5], at p. 493), the court does not generally allow the late registration of a charge after the commencement of liquidation proceedings, and the reasons for this are explained by Gower:

‘Section 404 enables the holder of a registrable charge which has not been registered within 21 days from its creation to apply to the court for an order extending the period for the registration of the charge. The jurisdiction of the court is very wide but normally the court will not make an order under section 404 once a winding up has commenced. The reason for this is that winding up is a procedure for the benefit of unsecured creditors and the registering of a charge after the commencement of winding-up would defeat their interests.’ (Paul L. Davies, Gower’s Principles of Modern Company Law 380 (6th ed. 1997) (1954)).

Prof. Cohen takes a similar view:

‘Whereas there is nothing to prevent the timely registration of a charge, that is, within twenty-one days of its creation, even if the company began liquidation within the period between the creation of the charge and its registration, the time for registration of the charge may not be extended after the commencement of the liquidation. As mentioned, the period for registration of a charge may not be extended when it is harmful to the creditors. Liquidation is a procedure intended to benefit regular creditors. The late registration of a charge, after the commencement of liquidation, is detrimental to the creditors’ interests. The Supreme Court in the matter of Iskoor v. Elkol [1] did not express its view on this question of late registration, after the commencement of liquidation, of a charge that was created before the liquidation began […]. In England too, the accepted view is that as a rule the court will not exercise its authority to grant an extension after the commencement of liquidation, for the reason of harm to the regular creditors. All the same, it was held there that in exceptional cases the court was entitled to extend the period, despite the commencement of liquidation proceedings. This would be the situation, for example, in a case in which the failure to register was the result of fraud’ (Cohen, at p. 581; and see Lerner, at p. 424).

21.  In our case, the non-registration was not the result of fraud and that exception does not apply. Furthermore, in Iskoor v. Elkol [1], one of the reasons for the conclusion that a charge would be valid even if registered late but “well before the commencement of the liquidation proceedings” was that “there was nothing to prevent the company from creating a new, identical charge and from filing the registration documents pertaining thereto on time” (ibid, at p. 298). This reasoning has no application in the case before us, because after the beginning of the liquidation, no transaction in the company’s assets can be made without the approval of the court (see s. 268 of the Companies Ordinance; regarding the purpose of this section and the conditions for its application, see CA 4351/01 Liquidator of C.A Food Company Ltd.  v. State of Israel, Department of Customs and V.A.T. [6], at p. 478ff.). Prof. Lerner’s comments in this regard are incisive:

‘The court justified the harm by saying that in any event, the secured creditor would be able to conclude a new pledge agreement with the company and to register it on time. However, this reasoning does not apply after the filing of an application to liquidate the company, since during that period, transactions made by the company with others are not valid, unless approved by the court. It may reasonably be presumed that the court would not approve a transaction granting one of the company’s creditors a charge regarding an old debt that the company owes to him’ (Lerner, at p. 350).

22.  To be precise: it might be argued that even if the charge was created before the commencement of liquidation, the fact that its registration was effected after the commencement of the liquidation should suffice for it be viewed as a “transaction in the company’s assets” which is impermissible under s. 268.  As ruled by Judge Levitt of the District Court:

‘Were we to recognize the Administration’s retroactive consent to the charge, after the commencement of the liquidation, we would thereby prejudice the rights of the company’s other creditors and confer upon the bank the preferred status of a secured creditor, which it did not have at the beginning of the liquidation. It would not be amiss to note that under s. 268 of the Companies Ordinance no transaction may be made in the company’s assets other than with the consent of the court. I see no grounds for allowing the bank to change and improve its status as a company creditor on the basis of an act done after the beginning of the liquidation, even if it is nothing more than the completion of an act taken by the company before the beginning of the liquidation (M (T.A.) 8663/91 (CC 1247/88) Crates Center Ltd. v. Industrial Development Bank of Israel Ltd. [31] at p. 80; see also and compare (M (T.A.) 14564/89 (CC 511/88) Liquidator of Razmig — Tires Marketing Co. v. Bukshpan [32], at para. 3; AC (Jer) 43/92 Hapoalim Bank Ltd. v. Tadmir Feed Mix Institute Cooperative Agricultural Association Ltd. (in liquidation) [33], at p. 379).

According to Judge Levitt, even the completion of an act by a creditor is tantamount to a transaction by the company, which is not allowed under s. 268, and as previously cited in the name of Prof. Lerner (emphasis added):

‘The division of the company’s assets amongst the various creditors will take place in accordance with the state that existed when the liquidation application was filed. Any act done thereafter, even if the company was not partner to it, will not change the manner of allocation that existed at the beginning of the liquidation (Lerner, at p. 446).

In the matter of Crates Center Ltd. v. Industrial Development Bank of Israel Ltd. [31] cited above, at issue was the retroactive consent of the Israel Lands Administration to a mortgaging of land, and Judge Levitt’s comments there concerning the Administration’s consent are also applicable, prima facie, to the matter at hand with respect to the Registrar’s consent to the extension of the period for registration. However, my decision is not based on s. 268, and therefore I will not rule on the question of whether registration per se constitutes a “transaction” within the meaning of s. 268, and I will leave the matter as pending further examination (see and compare: CA 126/89 Liquidator of Koppel Tours Co. Ltd. v. Dan Hotels Co. Ltd. [7] at p. 451; CA 558/88 Itung Ltd. v. Levi David and Sons Ltd. (in liquidation) [8] at pp. 138-139, in which, inter alia, the question arose as to how to distinguish between the continued existence of the power of attorney and the extent to which the right secured by the power of attorney continues to exist after the commencement of liquidation proceedings).

23.  Moreover, as stated, the rights of the parties crystallize with the commencement of the liquidation, and in addition, the principle of equality is accorded priority status. Prof. Cohen even adds that “by virtue of this principle the courts will prefer an interpretation that preserves the principle” (Cohen, at pp. 19–20). Dr. Bahat adds that “the principle of equality is the starting point in the laws of liquidation, and its application may also be of importance in those cases in which there is an exception which sets in law any kind of priority right. For example, even exceptions to the principle of equality are given a restrictive interpretation, and equality of creditors occasionally serves as a principle that often redirects the rights of the secured creditor back towards the starting point of equal division” (Yechiel Bahat, Corporations — The New Ordinance and the Law, vol. 3 pp. 1445-1446 (10^th  ed., 2008) (hereinafter: Bahat, vol. 3). It appears that there is no dispute that this principle is based on considerations of justice, and as noted by Prof. Lerner: “The classical explanation for the rule of equality in liquidation and bankruptcy is rooted in foundations of justice and fairness” (Lerner, at p. 18). This point was also made by Dr. Bahat, who noted that —

‘… the rule is based on considerations of justice. Considerations of justice play a central role in the laws of liquidation, whose English source is in the laws of equity. These considerations of justice dictate not only equal distribution of the property remaining at the end of the liquidation process, with the liquidator’s examination of the creditors’ proofs of debt, but also the ensuring of equality for the duration of the process. For example, by the invalidation of transactions and transfers executed after the beginning of the liquidation’ (Bahat, vol. 3, at p. 1443)

24.  In the present case the respondent claims that the parties’ rights crystallized with the commencement of the liquidation, and that considerations of justice should therefore lead to the conclusion that these rights cannot be affected by validating a charge registered late, after the commencement of liquidation proceedings. The appellant claims, on the other hand, that justice is on its side, because it was the appellant that sold the heavy engineering equipment which is the subject of the appeal to the Company, and there is no reason that other creditors should be able to enjoy this property, for which no payment was made. Indeed, it is undeniable that concretizing the consideration of justice in this case is not simple. What I said in another case is appropriate in the present context:

‘In any situation of bankruptcy or liquidation of companies, a situation of injustice is created vis-à-vis innocent parties. Justice dictates that any person who is indebted should pay his debts. In a state of insolvency, innocent bystanders gain, if anything, a dividend, and the morsel does not satiate the lion. When the blanket is short, pulling the blanket in any direction will perforce expose to the cold the party from whom it was pulled. Many are pulling the blanket in different directions: creditors with priority rights, owners of charges, parties with setting off rights, regular creditors and the like. Any solution that prefers one of them is necessarily at the expense of another […]. Either way, we must determine a uniform rule which does not take into consideration the question of whom the legal solution “will enrich” (CA 1689/03 Israel Credit Cards Ltd. v. Official State Receiver [9]).

In this case too, a uniform rule should be established that does not take into consideration the question of whom the rule will “enrich”. In formulating such a rule we must tread, as I stated in another case, “the path which will benefit the party looked upon favorably by the legislator” (CA 5789/04 Hamashbir Hayashan Ltd. v. Logistiker Ltd. [10]). In the circumstances of this case, where the charge was registered late, and only after the liquidation proceedings had commenced, the legislature has taken the side of the liquidator (and the other creditors). This is evinced by s. 178(a) of the Ordinance:

Charges requiring registration

178.(a) Any charge of the types listed below, which was created by a company registered in Israel, shall be void in respect of  the liquidator and any creditor of the company, to the extent that it places a guarantee on its assets or plant, unless the prescribed details of the charge and the document that creates or attests to it — if there was such a document — were delivered to the Registrar or received by him by the time and in the manner specified in s. 179, , for the purpose of registration as required under this Ordinance.

25.  In the legal literature, explicit reference is to be found regarding the purpose of s. 178 as being to protect the liquidator and any other creditor:

‘The purpose of s. 178 is to grant full assurance that any charge on the company’s assets which was not registered with the Registrar of Companies within the period prescribed by law, or within the extended period [ ... ] will be void toward the liquidator and any other creditor of the company in the event that it places a guarantee on the company’s assets or its plant. In other words, the lender in whose interest the charge was created will not enjoy any preferential right in relation to other creditors, or toward the company liquidator, since they were entitled to assume that the company was free of any charges and it was on that basis that they provided credit, and the law therefore protects them from being harmed. (A. Felman, Company Law in Israel – In Theory and in Practice, vol. 2 (4th ed, expanded and updated by Hadara Bar-Mor, 1994), at p. 956).

Indeed, s. 178 instructs that when the charge was not registered on time, the legislator preferred the liquidator and the creditors of the company. In view of s. 178, Zaltzman and Grosskopf argue that no validity should be ascribed to a charge registered late, after the beginning of the liquidation, and “from this  the importance of the act of perfection is derived. Only a pledge or charge that were perfected before the bankruptcy or liquidation proceedings were initiated, will be valid toward the trustee or the liquidator” (Nina Zaltzman and Ofer Grosskopf, Pledging of Rights (2005), p. 303. In this context they stress that:

‘Where the liquidation of a company is concerned, the determining date for purposes of examining the validity of the charge against the liquidator must in our opinion be the date of the commencement of the liquidation proceedings, which is the day on which the application for liquidation is filed (ibid., n. 168).

Therefore, the rule that ought to be established in our case is that no validity should be granted to a charge that was registered late, after the commencement of the liquidation proceedings, when the rights of the parties had already crystallized. I believe that this ruling also adheres to the path that gives preference to the party favored by the legislator under these circumstances, and is consistent with the purposes of registration with the Registrar of Companies. I will now address this.

Objectives of Registration with the Registrar of Companies

27.  The objectives of the register of charges maintained by the Registrar of Companies has been addressed in both caselaw and the legal literature. Some writers have stressed the traditional-historical role, which was to attest to the authenticity of the charge transaction, whereas others have stressed its publicity role. Here we are not required to decide which of these objectives takes precedence, because allowing registration after the commencement of liquidation undermines both objectives (see and compare CA 2070/06 Equipment and Construction Infrastructures Ltd. v. Receiver [11]; it bears note that in that case, an application for a further hearing was denied (FHC 9048/08)).

28.  There is a tendency to view the judgment in Iskoor Steel Facilities Ltd. v. Elkol Ltd. [1] as one that focuses on the historical-traditional role (Lerner, at pp. 357-358). Indeed, the historical-traditional role was to view the register as proof of the charge. This point was made by Prof. Lerner:

‘In order to prevent collusions between the debtor and one of his creditors, the court only recognized charge transactions that were registered in the public register of charges. The register attested to the authenticity of the transaction, and to its not being first conceived of at the time of liquidation for the purposes of detracting from the portions of the regular creditors of the company’ (Lerner, p. 364).

In this sense, the register is evidentiary — it attests to the transaction and obviates the need for factual clarification. The evidential aspect is of particular importance after the liquidation proceedings have commenced. As noted by Prof. Lerner:

‘The additional purpose of the register is evidentiary — to attest to the existence of a right in favor of a particular transferee. This evidence is of particular importance when the company is insolvent and its assets do not suffice for the payment of all of its debts. In that situation the company may wish to benefit a particular person and to claim that specific assets are charged to him. To prevent this claim being raised for the first time during insolvency, the law negates the validity of an unregistered charge toward the liquidator of the company. In that sense, registration plays a key role in the conflict between a secured creditor and regular creditors (Lerner, at p. 368).

Thus, the historical-traditional role is intended to protect the secured creditor who registered the charge, but on the other hand, as noted by Prof. Lerner, the registration according to this objective is also intended “to protect the general creditors of the company” (Lerner, at p. 382); and therefore, he says, “the law prescribes that an unregistered charge is invalid with respect to the liquidator of the company and its regular creditors” (Lerner, at p. 362). Justice Englard ruled that “the historical-traditional role of the register was to attest to the authenticity of the charge transactions so as to prevent collusions between the debtor and his creditors. An unregistered charge was invalid because it was viewed as fraudulent” (CA 6400/99 Mirage Construction and Investments Co. Ltd. v. Hapoalim Bank Ltd. [12], at p. 853a). In the case before us, it was only after the beginning of the liquidation proceedings that the appellant sought to register the charge. If we say that a charge registered late, after the beginning of the liquidation proceedings, is similarly valid, it would undermine the historical role of the register, which is, inter alia, to protect the regular creditors of the company. Moreover, it would also detract from commercial certainty and stability (see Lerner, at p. 336). In addition, it would render the register irrelevant as a means of attesting to the absence of any collusion, and each case would require complex factual clarification and litigation, contrary to the historical-traditional objective. As stated, according to the historical-traditional objective, a charge that was not registered “was viewed as fraudulent” (in the words of Justice Englard), and granting it validity even after the beginning of the liquidation would undermine that objective and create a dangerous outlet for collusions (see and compare CA 4316/90 Haspaka Central Company for Agriculturalists Ltd. (in liquidation) v. Agra — Even Yehuda Cooperative Agricultural Society Ltd.  [13], at 182.

29.  So it is regarding the historical-traditional objective of the registration. At a later stage of its development, the “publicity” role of the register was also recognized, i.e., “as a source of information for someone considering doing business with the company […] [and] providing information to third parties regarding the nature of the rights in the company’s assets” (see Mirage v. Hapoalim Bank [12], at p. 853. The question is often asked whether the objective of publicity is relevant for all the creditors, or only for those creditors interested in being secured. Prof. Cohen notes that indeed, “the regular creditors do not normally rely on the register of charges, but rather on the economic strength of the company and its state of liquidity. Still, it does not follow from this that the register of charges is absolutely irrelevant for the purposes of the regular creditors. For example, […] regular creditors may examine the register of charges after granting credit in order to assess the degree of danger to which they are exposed and to request repayment of the loan they made to the company, as well as refuse to grant additional credit to the company” (Cohen, at p. 580). Prof. Deutch also takes the view that “the regular creditors have a reasonable protected interest that an examination of the position of the debtor’s charges will provide them with a reliable picture regarding the claims to the debtor’s assets which may serve for future payment. This picture also enhances their ability to evaluate and plan the degree of danger in which they may be (Deutch, vol. 1, at p. 195, and see Haviv-Segal, at p. 156). According to Prof. Lerner, the purpose of publicity may be relevant primarily to the creditors seeking to take securities and not to regular creditors, “since the register reflects the position of the charges at a given point in time and [the regular creditor] is exposed to charges that may be created at a later point” (Lerner, p, 360). He notes, however:

‘Some are of the opinion that regular creditors too have an interest in examining the register of charges. These creditors are likely to examine the register periodically, and if they notice a significant change in the scale of the company’s charged assets, they can, if necessary, demand the repayment of existing loans and refrain from giving additional loans. The list of charged assets provides the creditors with a general, non-binding indication of the company’s activities, and they may demand that it avoid creating further charges in the future (ibid, p. 381)

Either way, in matters of property and charges, publicity is important per se and “in the law of securities and in the law of property in general, the rule is that to create a right that is effective vis-à-vis third parties, the right must have some element of publicity (CA 790/85 Israel Airports Authority v. Gruss [14], at p. 212e . In this context Justice Procaccia ruled that the aspect of publicity is the “principal determinant of the power of the property right and its immunity when confronted by third party claims” (CA 2641/97 Ganz v. British and Colonial Company Ltd. [15], at p. 422). As noted by Professor Deutch:

‘Given that property affects the entire world, the manner in which it is created mandates, in principle, the existence of a component of publicity’ (Deutch, vol. 1 p. 127).

It would therefore seem that recognition of the validity of a charge registered late, after the beginning of the liquidation proceedings, would undermine the objective of publicity. Prior to the liquidation there was no public charge, and after the beginning of the liquidation the other creditors are powerless to do anything. Allowing the late registration of a charge after the beginning of liquidation proceedings would also detract from the reliability of the picture that the register is intended to provide in real time, and from the expectations of the creditors. As noted by Justice Or, “The idea is that all those who do business with the company, as in the case before us, will be able to clarify the situation relating to charges and collaterals that the company has given, by means of an inquiry at the Registry of Companies” (Haspaka v. Agra [13], at p. 175). Late registration after liquidation would also be detrimental to commercial and legal certainty. In fact, it would seem that it was the objective of publicity that constituted the basis of Prof. Deutch’s conclusion that validity should not be given to a charge registered after the beginning of liquidation proceedings. In his words:

‘The regular creditor’s reliance on the dimension of publicity is a legitimate, protected interest, and cannot be negated on the spur of the moment […]. The regular creditor also has an interest in being able to rely on the public presentation of charges regarding past transactions, both in order to receive reliable information regarding the financial position of the debtor and because, in view of this [presentation], he relies on various evaluations relating to anticipated developments in the future […]. This ability of the regular creditor to rely on the register, according to our approach, may — in view of the element of publicity — mean that no retrospective recognition should be granted to the charge of a competing creditor in circumstances in which liquidation proceedings have begun in the meantime, for in such a case the regular creditor — whose status as a creditor materialized during the interim period — would prima facie be entitled to claim that he did not assume the risk of the creation of a property pledge after the beginning of the liquidation. The creation of a pledge under these conditions is a future development which from a legal perspective could not have occurred originally at the time of the extension; this development relies on the past; and in relation to the past, as noted, protection should also be given to the reliance of creditors whose creditorship materialized during the interim period’ (Deutch, vol. 1, pp.164-165; see also Cohen, p.581).

30.  Furthermore, particular importance attaches to the absence of publicity in the current case of liquidation proceedings in which the principle of equality has prime status. Dr. Bahat maintains that under these circumstances, “any request directly related to the relations between the secured creditor and other creditors, and especially any property request based on the rules of publicity set forth in the law, concerning requirements for registration or deposit, will be meticulously examined (Bahat, Corporations — The New Ordinance and the Law vol. 1 (10^th ed. 2008), at pp. 614-615 (hereinafter: Bahat, vol. 1). He adds that “the property format recognized by the law and the fulfillment of the requirements of publicity are the minimum necessary conditions, before we allow the creditors as a group to be deprived of equal treatment in bankruptcy and liquidation, and create a preference for the secured creditor […]. As a rule we explain this by the need to create a warning for creditors or the need to prevent creditors from relying on a particular factual representation” (ibid, at p. 620). Finally, he argues:

‘As a matter of principle, any deviation from the equality of creditors in bankruptcy and liquidation proceedings, in my view, mandates particular stringency in the fulfillment of the property-based requirements, including publicity  […]. This is “ the end of the game”, and these proceedings leave no further outlets for the creditors. As I stressed above, a person uncomfortable with the seemingly “formalistic” stringency can view it as the result of distributive justice, which does not look kindly on the obtaining of preference over other creditors, and which therefore induces the courts to be meticulous about fulfillment of the conditions that confer priority” (ibid, at p. 622).

Another reason for being meticulous about the publicity requirements, according to Dr. Bahat, is that there must be “some kind of formal act by a person seeking priority status, in a manner that stresses his reliance on the collateral” (ibid, at p. 621).

31.    Thus, it is immaterial whether the principal objective of the register is the historical-traditional one of verifying the authenticity of the charge transaction, or whether the objective is publicity, since ascribing validity to a charge that was registered late, after liquidation proceedings had begun, undermines both of these objectives. Support for the conclusion that in the case before us a charge that was registered late, after liquidation proceedings had begun, should not be considered valid, may also be found in aspects of good faith, which I will discuss below.

Good Faith

32.    The principle of good faith is, as we know, a foundational principle of our legal system. It functions as “a binding principle guiding conduct and legal policy with respect to legal actions and obligations throughout the entire Israeli legal system” (HCJ 566/81 Amrani v. Rabbinical Court of Appeals [16]. “The principle of good faith also applies in the framework of the laws of property” (Ganz v. British and Colonial Company [15], at p. 401c). The obligation of good faith “is imposed upon every person in Israel in his execution of legal acts”(CA 610/94 Buchbinder v. Official Receiver [17] at p. 332). These comments are also applicable, of course, to creditors seeking to secure their right, and as this Court has already ruled:

‘The protection of the creditors’ interest in securing their right, and the debtor’s interest in his rehabilitation do not stand alone, but rather are subject to the principle of good faith (CA 6416/01 Benbenisti  v. Official Receiver [18], at p. 205 d–e).

The requirement of good faith applies to all relationships. It determines what constitutes fair conduct in the particular circumstances. The scope for fairness differs from case to case, and is influenced by the balancing of a number of considerations. Indeed, the good faith requirement is not detached from personal interests but it also compels consideration for the other and his interests. As noted by President Barak:

‘The principle of good faith determines the manner of conduct of people brought together by reality. It demands that people conduct themselves with integrity and fairness as dictated by the sense of justice of Israeli society […]. Good faith does not assume a “quality of piety” […]. Good faith does not require a person to disregard his own self-interest. […] The principle of good faith establishes a standard of conduct for people, each of whom is concerned about his own self interest. The principle of good faith determines that a person’s preservation of his own self interest must be fair, taking into consideration the justified expectations and appropriate reliance of the other party. Man is to man — not a wolf and not an angel; man is to man — a man.  […]. The quality of fairness is influenced by a broad spectrum of considerations […]. The scope of fairness required is the product of a balance struck between these considerations and others. The judge must weigh up the various considerations and determine which of them has the upper hand (LCA 6339/97 Roker v Solomon [19], at p. 279).

In another case President Barak stated:

‘Good faith starts with the assumption that the individual takes care of his own interests. Good faith seeks to guarantee that he does so appropriately, taking into consideration the justified expectations of the other party’(HCJ 164/97 Conterm Ltd. v. Minister of Finance, Department of Customs and V.A.T. [20], at p. 348 f–g).

33.  In our case, as specified, the expectations and reliance crystallized on the date on which the liquidation began, and the appellant should have taken that into consideration. The respondent claimed that the knowledge of Rolider’s financial collapse had spread to the Company’s creditors. News of the application for liquidation, which as stated was filed on 27 December 2001, appeared immediately in the financial press and in the commercial data bases, and Regis never claimed otherwise. According to the respondent (and the claim was not denied), Regis tried to seize the equipment but then realized that it had never registered the charge and so, it “frantically” (in the words of the respondent) applied to the Registrar of Companies on 2 January 2002, almost two years after the date on which the equipment was first transferred, and just a few days after the liquidation application.  However, despite all this, all that was said in the extension application was that “due to the arrival of the equipment in two separate consignments, an error occurred by us and the charges were not registered with the Registrar of Companies.” Such an application does not contain all the information that should have been included. Fairness and honesty demand that in an application for extension, the Registrar should be presented with the complete picture, fully disclosing the entirety of the important information. The existence of an application for liquidation is an important fact that ought to have been mentioned, and its non-inclusion in Regis’ application demands an explanation. What Felman wrote in his book on English law is apposite here:

‘In an application to the court to issue an order [for an extension of the period for registration of a charge – M.N.] the words “incidentally” or “accidentally” will not suffice. The applicants must provide a detailed account of all the circumstances that led to the non-registration of the charge […]. The affidavit in support of the application to the court must include: a declaration stating that no application has been filed for the liquidation of the company and that no notice of voluntary liquidation has been given by the company to its shareholders, or that a judgment for payment issued against the company was not paid, and that the non-registration is not liable to prejudice the position of the creditors or the shareholders of the company’ (Felman, at pp. 967-968; see also and compare: Council for Production and Marketing of Plants v. A.S. Li [29]).

In our case too, Regis could have been expected to present the complete picture to the Registrar, including the fact of the filing of the liquidation application. Above and beyond the issue of Regis’ conduct, this is also significant in terms of the Registrar’s decision. As is well known, the exercise of authority “necessitates first and foremost the existence of a factual foundation upon which the administrative authority bases its discretion when making a decision” (LPA 426/06 Hava v. Prison Service [21], para. 14). Likewise, it was held that “the law does not tolerate an unfounded decision. The law is that an administrative decision must be based on a factual foundation” (HCJ 987/94 Euronet Golden Lines (1992) Ltd. v. Minister of Communications [22], at p. 423 b–c). The absence of a full picture is detrimental to the Registrar’s ability to “reach a well considered, balanced decision which takes into account all of the relevant interests” (CA 8434/00 Delek Israeli Gas Co. Ltd. v. Gazit and Shaham Construction Company [23], at p. 703 d–e). It may also prevent the Registrar from providing all those liable to be harmed by the decision with the opportunity of stating their claims (see and compare: Eliad Shraga and Roi Shachar, Administrative Law – Grounds for Intervention 130 (Tova Elstein ed., 2008); CrApp 2236/06 Hamami v. Ohayon [24]). In the absence of a full picture the Registrar is liable to fail to exercise his discretion correctly and desirably, and this failure is attributable to Regis, which in its application did not provide the full factual picture as required. Since the matter ultimately came before the liquidation court, as it should have done, I will not base my decision on this.

34.  However, concerning the aspect of good faith beyond that which was (and which was not) included in the application for an extension, the time that elapsed until the filing of the application for an extension cannot be ignored. In this context it must be recalled that it was possible for Regis to register the charge on time, and in so doing to prevent this entire litigation — but it failed to do so. Here, an analogy may be drawn from Ganz v. British and Colonial Company [15], in which President Barak ruled that the extent of application of the duty of good faith takes into consideration the entire range of variable factors, and that in principle, good faith requires that a person executing a transaction in land make every effort to register a caution in order to avoid a “legal accident”; and if indeed he could have avoided the “accident” but did not do so, he will be regarded as having breached his duty of good faith. President Barak added that the caution must be registered within a reasonable period. Our case indeed differs from Ganz British and Colonial Company[15], but there also points of similarity, and as President Barak stated there: “The general doctrines of law apply to all parts of the law” (Ganz v. British Colonial Company [15], at p. 400 b–c; see and compare Equipment and Construction Infrastructures Ltd. v. Receiver [11], para. 30). It seems to me that from an overall perspective, the fact that Regis had the opportunity to register the charge over a long period of time, and failed to do so until after the filing of the application for the Company’s liquidation, erodes its good faith. It also demonstrates that Regis did not take any measures to demonstrate “its reliance” on the collateral, and this too operates to its detriment. The comments of Justice Goldberg are apposite in this context:

‘A person who leaves his contractual right exposed without protection, when the effort involved in acquiring the protection is minimal and insignificant, must be prepared for a situation in which he is saddled with the consequences of the risk stemming from his omission. A legal system which imposes the duty of preventing damage (and as result — the risk of the damage materializing) on the party for whom the effort expected of him in preventing the damage is minimal is an efficient legal system’ (CA 839/90 Raz Building Company Ltd. v. Erenstein [25], at p. 743).

35.  In Ganz v. British Colonial Company [15], it was held that “good faith assumes that the holder of the right will ensure the security of his right. At the same time, good faith seeks to prevent the exercise of a right in a manner that disregards the existence of the other party and that disregards the social interest (ibid, at p. 400 f–g). It seems to me that not registering the charge over a protracted period, even though all of the documents were in Regis’ possession, is not consistent with the requirement not to disregard the existence of other parties and social interests. In my remarks above I already discussed the interest of publicity and certainty and its influence on other creditors, and I will not repeat what I said. I will only add that as regards the period of time that passed, it must not be forgotten that the legislator allotted a period of twenty-one days for the registration. In our case the equipment was transferred during the second half of the year 2000 and at the beginning of the year 2001, but the application for an extension of the filing period was only submitted at the beginning of the year 2002, i.e. a long time after the statutorily prescribed period. The deviation is a significant one, especially as we are dealing with a serious, professional creditor, and this too cannot be ignored when examining the entirety of factors and the duty of good faith.

Additional Claims

36.  The appellant argues (in its responding summations) that because the liquidation order was issued by virtue of another liquidation application (which was filed on 14 April 2003), one cannot return to the date on which the first liquidation application was filed (27 December 2001), after it had been cancelled. I cannot accept this argument. First, the argument was not raised in the appeal; it was raised for the first time in the responding summations, even though the lower court also relied, inter alia, on the submission date of the first liquidation application (see paras. 14 and 15 of its judgment). It will be recalled that the court ruled that registration of the charge on 2 January 2002 took place during the “prohibited period”, and that this constituted fraudulent preference. If indeed there was justification for considering (as claimed in the responding summations) only the liquidation application filed in 2003, then in any event there would have been no reason to speak of fraudulent preference, because the registration was carried out long before 2003. In other words, if indeed the appellant’s claim was that the only relevant liquidation application was the one filed in 2003, then this claim should already have been raised within the framework of the appeal, because this would have refuted the lower court’s finding that the case involved an event that took place during the “prohibited period”, insofar as the liquidation application was concerned. It will be recalled that the appellant argued against the ruling of the lower court that the date of the transaction for purposes of fraudulent preference was the date of perfection (2 January 2002) and not the date of creation (during the years 2000 and 2001). The appellant attempted to persuade us that the court erred in this holding. However, if the only relevant liquidation application is the one filed in 2003, the question of the perfection date or the creation date is of no significance whatsoever. The appellant, as specified, did not make this claim in the appeal, and hence it is clear that it agreed that the determining date regarding the liquidation application was 27 December 2001. Furthermore, as I mentioned at the outset, all of the insolvency proceedings took place in succession, and the cancellation of the first liquidation application (by consent) and the filing of the new liquidation application (by the trustee himself) were part of the sequence of insolvency proceedings. In fact, this can be regarded as akin to a “substitution” as provided in reg. 10 of the Companies (Liquidation) Regulations, 5747-1987, in accordance with which the court may, at any stage of the proceedings, order that the applicants be substituted and that the hearing of the application be continued even after the cancellation of the first liquidation application (see Cohen, at pp. 224-225).

37.  An additional claim made by the appellant in its appeal is related to contractual stipulations that prohibited the Company from transferring the equipment to others without the appellant’s consent, its claim being that the court erred in its failure to decide on the claim, on the grounds that it was raised belatedly. I cannot accept this claim. Having examined the various documents that were submitted to the court, I accept the court’s ruling on the matter. Moreover, the respondent is correct in claiming that not only was the claim raised belatedly, but it also assumed varying forms. Thus, what began (belatedly) as a claim concerning the conservation of ownership subsequently became a claim on the contractual plane. However, the hearing as a whole, as determined by the court, focused on the plane of property law, and there is no place to allow for belatedly raising claims on the contractual plane. Furthermore, the respondent argues, with reason, that claims on the contractual plane, as distinct from claims on the plane of property law such as ownership and charges, would in any event be of no avail to the appellant, and what is more, in all matters pertaining to the relations with the Company, there is no dispute regarding the rights of the appellant (see para. 24 of the lower court’s judgment, cited above). It bears note that no claims of “equitable rights” were made before us and therefore I will not express any opinion on the matter (see in this context CA 603/71 Bank Leumi LeIsrael Ltd. v. Land of Israel-Britain Bank [26], at pp. 477–478; CA 181/73 Shtukman v. Spitani [27], at pp. 187; CA 248/77 Hapoalim Bank Ltd. v. Garburg Ltd. [28], at pp. 261–262).

 

Epilogue

38.  The late registration of the charge after the commencement of liquidation proceedings does not, in this case, constitute fraudulent preference as ruled by the District Court; nonetheless, in my view the charge cannot be deemed valid. As a rule, the late registration of a charge should not be permitted after the commencement of liquidation proceedings thus violating of the principle of equality among creditors. Enabling the late registration of a charge after the commencement of liquidation proceedings would also undermine each of the goals of the register. Our case also involves aspects of good faith with respect to the period of time during which the appellant waited before filing the application for an extension, and with respect to the contents of the application, and certain weight must also be attached to these factors. I would therefore propose to my colleagues to deny the appeal. Under the circumstances, I would not make an order for costs.

 

Justice E. Arbel

I concur.

 

Justice E. Rubinstein

1.    I concur in the result reached by my colleague Justice Naor and the main points of her informative analysis. There are only two matters that I would like to address.

First, I will add another reason in support of my colleague’s decision on the matter of fraudulent preference (s. 98(a) of the Bankruptcy Ordinance). The term “fraudulent” carries the connotation of “malicious”; therefore, exceptional caution is required in the attribution of fraud, even in the framework of a civil rather than a criminal proceeding, because it implies the performance of a highly negative act, and its result is a stain of sorts. In my view, the courts must give this matter consideration. In the case at hand, I, like my colleague, believe that it is difficult to apply the word “pressure “ as per s. 98(a) to a situation in which there was no act on the part of the Company itself, as opposed to its creditor, as explained by my colleague.  I too see no need to take a position on the tax authorities as a “pressuring” factor, even though it is clear that their powers as public bodies are greater than those of individual actors, and hence their “pressure” or “constraints” are more significant.

2.    Secondly, regarding good faith, I agree with my colleague that “fairness and honesty demand that in an application for extension, the Registrar should be presented with the complete picture, fully exposing the entirety of the relevant information,” including an application for liquidation. In this context there is certainly a problem with the good faith of the appellant. On the other hand, in my view, caution is required when ascribing bad faith with respect to the period of time that elapsed, since human experience shows quite often that a person does not do that which is required of him purely due to negligence, and in such a case, he may lose in court and be harmed, but this would not taint him with a lack of good faith.

3.    Subject to the above, I concur in the opinion of my colleague, Justice Naor.

 

Held as per the opinion of Justice M. Naor.

 

13 Av 5769.

3 August 2009.

 

LCA 4716/04

Hotels.com

v

1.       Zuz Tourism Ltd

2.       Hotels Online Ltd (formal respondent)

 

 

The Supreme Court sitting as the Court of Civil Appeals

[7 September 2005]

Before Vice-President M. Cheshin and Justices A. Grunis, E. Arbel

 

Application for leave to appeal the decision of the Jerusalem District Court (Judge M. Drori) on 4 April 2004 in CApp (Jer) 1929/02.

 

Facts: The applicant and the first respondent entered into an exclusive marketing agreement in February 2000. This agreement contained an arbitration clause stating that disputes between the parties would be resolved by arbitration which shall take place in Texas. In June 2002, the first respondent filed an action in Israel against the applicant and the second respondent, on the grounds that the second respondent was marketing the services of the applicant contrary to the agreement. The applicant filed a motion for a stay of proceedings on account of the arbitration clause in the agreement. The District Court denied the application, and the applicant applied for leave to appeal the District Court’s decision. The application was heard as an appeal.

 

The main question before the Supreme Court was whether the joinder of the second respondent, who was not a party to the agreement containing the arbitration clause, justified refusing a stay of proceedings on the ground that otherwise the litigation would be split between two proceedings. Under Israeli law, the court has discretion to refuse a stay of proceedings in such a case with regard to domestic arbitration agreements. The question before the court was whether the court had such discretion in a case of an international arbitration agreement that is subject to an international convention. The parties agreed that the arbitration clause was subject to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958. This convention, known also as the New-York convention, was ratified by Israel in 1959.

 

Held: The Israeli court does not have the same discretion to stay proceedings under s. 6 of the Arbitration Law regarding an international arbitration agreement as it does under s. 5 of the Arbitration Law regarding a domestic arbitration agreement. Under s. 6 of the Arbitration Law together with art. 2(3) of the New York Convention, the court is required to stay proceedings unless it finds that the arbitration agreement ‘is null and void, inoperative or incapable of being performed.’ It cannot refuse a stay of proceedings on additional discretionary grounds. The existence of a litigant who is not a party to the arbitration agreement does not make the agreement ‘null and void, inoperative or incapable of being performed.’ Consequently, the court is required to order a stay of proceedings in such circumstances.

 

Application granted. Appeal allowed.

 

Legislation cited:

Arbitration Law, 5728-1968, ss. 5, 6.

 

Israeli Supreme Court cases cited:

[1]  CA 6796/97 Yaakov Berg & Sons (Furniture) Ltd v. Berg East Importers Ltd [2000] IsrSC 54(1) 697.

[2]  LA 201/85 Nitzanei Oz Workers Cooperative Agricultural Settlement Ltd v. Balhassan [1985] IsrSC 39(3) 136.

[3]  LCA 985/93 Alrina Investment Corporation v. Barki Feta Humphries (Israel) Ltd [1994] IsrSC 48(1) 397.

[4]  CA 307/71 Unico Reutman Public Works Co. Ltd v. Shimshon Insurance Co. Ltd [1972] IsrSC 26(1) 368.

[5]  CA 4601/02 Rada Electronic Industries Ltd v. Bodstray Co. Ltd [2004] IsrSC 58(2) 465.

[6]  LCA 1407/94 Mediterranean Shipping Co. S.A. v. Crédit Lyonnais (Suisse) S.A. [1994] IsrSC 48(5) 122.

[7]  CA 778/03 Inter-Lab Ltd v. Israel Bio Engineering Project [2003] IsrSC 57(5) 769.

 

Israeli District Court cases cited:

[8]  CC (TA) 842/87 General Electric Corp. of New York v. Migdal Insurance Co. Ltd (unreported).

[9]  CApp (Hf) 213/99 Egnatia Shipping Limited v. Israel Discount Bank Ltd (unreported).

[10]  CA (TA) 3060/03 University of Leicester v. Cohen (unreported).

 

American cases cited:

[11]  Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974).

[12]  Mitsubishi Motors Corporation. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985).

[13]  Riley v. Kingsley Underwriting Agencies Ltd., 969 F. 2d 953 (1992).

[14]  Intergen N.V. v. Grina, 344 F. 3d 134 (2003).

 

Canadian cases cited:

[15]  City of Prince George v. A.L. Sims & Sons Ltd. (1995) 61 B.C.A.C. 254 (B.C.C.A.).

[16]  BWV Investments Ltd. v. Saskferco Products Inc. [1995] 119 D.L.R. (4th) 577 (Sask. C.A.).

[17]  Kaverit Steel and Crane Ltd. v. Kone Corp. (1992) 120 A.R. 346.

 

English cases cited:

[18]  Lonrho Ltd v. Shell Petroleum Company Ltd, unreported decision of High Court of Justice, Chancery Division, on 31 January 1978; see Yearbook, Commercial Arbitration, vol. IV–1979, 320.

[19]  Etri Fans Ltd v. NMB (UK) Ltd [1987] 2 All ER 763.

 

For the applicant — E.A. Naschitz.

For the respondents — D. Eidelaman, R. Preiss.

 

 

JUDGMENT

 

 

Justice A. Grunis

1.    This is an application for leave to appeal the decision of the Jerusalem District Court of 4 April 2004 (the honourable Judge M. Drori), in which the applicant’s motion for stay of proceedings in an action filed by the first respondent against the applicant and against the second respondent, was denied.

The factual background

2.    The applicant (hereafter — hotels.com) is a foreign company registered in the United States. Its business is marketing tourism services, and especially hotel rooms, on the Internet. It should be noted that the former name of hotels.com was Hotel Reservations Network Inc. The first respondent (hereafter — Zuz) and the second respondent (hereafter — Hotels Online) are Israeli companies that do business in the field of tourism. On 29 February 2000, hotels.com and Zuz entered into an agreement in which it was stated that Zuz would market in Israel the tourism services offered by hotels.com, in return for a certain commission (hereafter — the agreement). Clause 11 of the agreement includes an arbitration clause, according to which disputes between the parties with regard to the agreement shall be decided within the framework of an arbitration proceeding, which will take place in the State of Texas in the United States (hereafter — the arbitration clause). Because of the importance of the arbitration clause for our purposes, we shall cite it in full:

‘The parties agree that any dispute under this agreement will be subject to binding arbitration under the commercial rules of the American Arbitration Association. The arbitration shall be conducted in Dallas County, Texas, before neutral arbitrators.’

The agreement does not include an express provision with regard to the law governing the agreement or the arbitration proceeding, but refers to the rules of the American Arbitration Association. In clause 12 of the agreement, it is stated that the Internet site that Zuz will maintain under the agreement shall be the only site in Israel in the Hebrew language through which hotels.com will market its services during the term of the agreement:

‘Zuz Tourism Ltd will be the only Internet site in Hebrew in Israel that we will sign on to integrate with per length of contract [sic[. This is from date of signed contract 29.2.00.’

3.    According to Zuz, it discovered in May 2002 that the services of hotels.com were being marketed on the Internet site of Hotels Online. Consequently, on 10 June 2002 Zuz filed an action in the Jerusalem District Court against hotels.com and against Hotels Online, in which it petitioned for declaratory relief that the aforesaid marketing activity constitutes a breach of the agreement. Zuz also petitioned for the relief of specific enforcement and for a permanent injunction prohibiting the marketing of the services of hotels.com on any Internet site other than that of Zuz. On the same day, Zuz also applied for temporary relief according to which, inter alia, the marketing of the services of hotels.com on the Internet site of Hotels Online be prohibited. For its part, hotels.com filed an application for a stay of proceedings on account of the arbitration clause in the agreement. On 4 April 2004, the District Court denied both the application for temporary reliefs and the application for a stay of proceedings. In the decision it was stated that a stay of proceedings against hotels.com was likely to result in an undesirable procedural split, in view of the fact that Hotels Online was not a party to the arbitration clause and thus no stay of proceedings could be ordered with regard to it. This split and the concern that conflicting findings would be reached in the two different proceedings, led to the decision of the District Court not to grant the application for a stay of proceedings. Admittedly, the lower court emphasized that the relevant provision of law in this case was s. 6 of the Arbitration Law, 5728-1968 (hereafter — the Arbitration Law or the law). This is because of the application of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, enacted in New York in 1958. Notwithstanding, it was held that, like s. 5 of the Arbitration Law, s. 6 of the law also gave the court discretion not to stay the proceedings in cases like this one. The application for leave to appeal is directed against the denial of the application for a stay of proceedings. Within the application, hotels.com also requested a stay of proceedings against Hotels Online. In August 2004, after the application for leave to appeal was filed, hotels.com applied to the American Arbitration Association in the United States with a request to file an action against Zuz under the arbitration clause (hereafter — the arbitration request). On 19 September 2004, the District Court gave temporary relief, according to which hotels.com was prohibited from continuing the arbitration proceedings in the United States. On 14 October 2004, this court (Justice Y. Türkel) issued an order that the aforesaid relief would remain in force until the decision was given in the application for leave to appeal, and that Zuz’s action would be stayed until then. We decided to hear the application as if leave had been granted and an appeal had been filed pursuant to the leave granted.

The legal framework

4.    The rule is that consent to submit any matter to arbitration does not negate the subject-matter jurisdiction of the court to hear the matter (CA 6796/97 Yaakov Berg & Sons (Furniture) Ltd v. Berg East Importers Ltd [1], at p. 706; LA 201/85 Nitzanei Oz Workers Cooperative Agricultural Settlement Ltd v. Balhassan [2], at p. 139). Notwithstanding, when an action is filed in court on a matter that was the subject of an arbitration agreement, the court has the power to stay the proceedings in the action. Thereby, a breach of the arbitration agreement is prevented. The main provision of the law that governs the issue of a stay of proceedings is found in s. 5 of the Arbitration Law:

‘5. (a) If an action is filed in court with regard to a dispute that it was agreed to submit to arbitration, and a litigant who is a party to the arbitration agreement applies to stay the proceedings in the action, the court shall stay the proceedings between the parties to the agreement, provided that the applicant was willing to do everything necessary to carry out the arbitration and continue it, and he is still prepared to do so.

(b) An application for a stay of proceedings may be filed in a statement of defence or in another way, but not later than the day on which the applicant first argued on the merits of the matter in the action.

(c) The court may refuse to stay the proceedings if it finds a special reason why the dispute should not be adjudicated in arbitration.’

Thus we see that when the conditions included in the section are fulfilled, the court will, as a rule, stay the proceedings between the parties to the arbitration agreement, unless it finds that there is a special reason why the dispute should not be adjudicated in arbitration. When considering whether to order a stay of proceedings in the action, the court may take various considerations into account (for a discussion of these considerations, see S. Ottolenghi, Arbitration — Law and Procedure (third extended edition, 1991), at pp. 126-145). In this context, the question arises as to how the court should act in cases where an application to stay proceedings is filed by some of the defendants who are a party to an arbitration agreement with the plaintiff, when there are other defendants who are not a party to this agreement. The question arises because it is not possible to compel someone who is not a party to the arbitration agreement to take part in the arbitration proceeding. Therefore, granting the application to stay the proceedings in such a case will lead to a split in the proceedings: the dispute between the plaintiff and the defendants who are party to the arbitration agreement will be adjudicated within the framework of an arbitration proceeding, whereas the dispute between the plaintiff and the other defendants (those who are not parties to the arbitration agreement) will be adjudicated before the court. Such a split may lead to conflicting conclusions and findings and is also not desirable for practical reasons. On the other hand, denying the application for a stay of proceedings will allow the breach of the contractual consent between the parties to the arbitration agreement. In the case law of this court, it is possible to find traces of different approaches with regard to this issue. In a decision from 1993 that addressed this issue, it was held, by a majority, that the court should examine the existence of two conditions (which were named ‘the two-stage test’): (a) is the joinder to the action of the defendant who is not a party to the arbitration agreement a genuine one, meaning that it was not done in order to evade the obligation to settle the dispute within the framework of arbitration (procedural necessity); (b) does holding the proceedings within one framework, without a split, constitute a condition for the plaintiff being able to obtain effective relief (substantive necessity). If the court is persuaded that both of the aforesaid questions should be answered in the affirmative, then there exists a special reason not to order a stay of the proceedings (the majority opinion in LCA 985/93 Alrina Investment Corporation v. Barki Feta Humphries (Israel) Ltd [3]; for another approach, see the minority opinion of Justice M. Cheshin in Alrina Investment Corporation v. Barki Feta Humphries (Israel) Ltd [3] and also CA 307/71 Unico Reutman Public Works Co. Ltd v. Shimshon Insurance Co. Ltd [4]; for a similar problem with regard to an exclusionary forum selection clause, see CA 4601/02 Rada Electronic Industries Ltd v. Bodstray Co. Ltd [5], at pp. 478-479).

5.    An additional provision concerning a stay of proceedings on account of an arbitration agreement is found in s. 6 of the Arbitration Law:

‘If an action is filed in court with regard to a dispute that it was agreed to submit to arbitration, and the arbitration is subject to an international convention to which Israel is a party, and the convention contains provisions concerning a stay of proceedings, the court shall exercise its power under section 5 in accordance with those provisions and subject thereto’ (emphasis added).

As can be seen from the wording of the aforementioned section, it does not apply to every case of an application for a stay of proceedings based on the existence of an arbitration agreement. Its application is limited merely to those cases where the arbitration is subject to an international convention to which Israel is a party, and that convention contains provisions concerning a stay of proceedings. With regard to such cases, the section provides that the power of the court vis-à-vis the issue of a stay of proceedings, as set out in s. 5, shall be exercised in accordance with the provisions of the convention and subject thereto. In other words, s. 6 of the law refers to the provisions of the convention concerning a stay of proceedings, and grants them preferential status to the provision of s. 5 of the Arbitration Law.

6.    In our case, there is no dispute between the parties that the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (hereafter — the convention or the New York Convention) applies to the arbitration clause. This convention, which was enacted in New York in 1958, was intended to replace the Geneva Protocol on Arbitration Clauses, 1923 (Treaties 4, p. 67) (hereafter — the Geneva Protocol). The convention was ratified by Israel in 1959 (the text of the convention was published in Treaties 10, p. 1). The relevant provision for our purposes is art. 2 of the convention:

‘Article II

1. Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.

2. The term “agreement in writing” shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties or contained in an exchange of letters or telegrams.

3. The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed’ (emphases added).

From the wording of art. 2(3) of the convention it can be seen that the court is required to order the referral of the parties to an arbitration proceeding, unless one of the three exceptions is satisfied: the arbitration agreement is null and void, inoperative or incapable of being performed.

The scope of the dispute

7.    Zuz filed its action both against hotels.com and against Hotels Online. The agreement between Zuz and hotels.com includes an arbitration clause, according to which disputes concerning the agreement will be decided within the framework of an arbitration proceeding that will take place in the State of Texas in the United States. On the other hand, there is no arbitration agreement between Zuz and Hotels Online. The lower court reached the conclusion that the joinder of Hotels Online to the action satisfied the two-stage test adopted in Alrina Investment Corporation v. Barki Feta Humphries (Israel) Ltd [3]. In this respect, it was held that the procedural necessity of joining Hotels Online to the action arose from the fact that it was the party that allegedly violated the exclusive right granted to Zuz under the agreement. The lower court also held that splitting the proceedings — in such a way that the dispute between Zuz and hotels.com would be adjudicated in an arbitration proceeding in the United States, whereas the dispute between Zuz and Hotels Online would be adjudicated before the courts in Israel — may lead to conflicting determinations and thereby prejudice Zuz’s right to obtain effective relief. We are prepared to assume, without ruling on this issue, that the District Court was right in determining that there is both a procedural necessity and a substantive necessity for joining Hotels Online to Zuz’s action. Had the only provision of law relevant to our case been the one in s. 5 of the law, then in view of the aforesaid assumption and on the basis of the case law rule laid down in the majority opinion in Alrina Investment Corporation v. Barki Feta Humphries (Israel) Ltd [3], it would apparently be necessary to reach the conclusion that there is no basis for staying the proceedings against hotels.com. However, in the case before us the provisions included in s. 6 of the law and in art. 2(3) of the convention apply. Consequently, according to s. 6 of the law, the court is required to determine the issue of stay of proceedings in accordance with the provisions of the convention. The question that arises in our case is therefore as follows: in cases where s. 6 of the law and art. 2(3) of the convention apply, is the court competent to refrain from staying proceedings because of the joinder of a defendant who is not a party to the arbitration agreement? In order to answer this question, we are required to consider two secondary questions that are interrelated: first, do the three exceptions included in art. 2(3) of the convention constitute a closed list? In other words, is the court compelled to stay the proceedings in every case where none of the three aforesaid exceptions apply? Second, does the fact that there is a defendant who is not a party to the arbitration agreement fall within one of the three exceptions in art. 2(3) of the convention? Let us now turn to consider these issues.

The scope of discretion given to the court under s. 6 of the law together with art. 2(3) of the convention

8.    The question of the scope of discretion given to the court under s. 6 of the law together with art 2(3) of the convention was considered in the judgment of LCA 1407/94 Mediterranean Shipping Co. S.A. v. Crédit Lyonnais (Suisse) S.A. [6]. According to the approach of Justice M. Cheshin, the referral of the parties to arbitration under the aforesaid provisions is an obligatory referral. This means that when the conditions set out in s. 6 of the law and in art. 2(3) of the convention are satisfied, the court is compelled to stay the proceedings and refer the parties to an arbitration proceeding, unless one of the exceptions set out in art. 2(3) of the convention applies (ibid. [6], at pp. 129-132). On the other hand, Justice T. Strasberg-Cohen questioned ‘whether the interpretation that denies the court discretion is the only possible and proper one’ (ibid. [6], at p. 128). Since it was not necessary to rule on that issue within the framework of those proceedings, she left undecided the question whether the list of exceptions in art. 2(3) of the convention constitutes a closed list (ibid. [6], at pp. 127-128). It should also be noted that there are conflicting decisions of the District Courts on this issue (see CC (TA) 842/87 General Electric Corp. of New York v. Migdal Insurance Co. Ltd [8]; CApp (Hf) 213/99 Egnatia Shipping Limited v. Israel Discount Bank Ltd [9]; for a different approach, see CA (TA) 3060/03 University of Leicester v. Cohen [10]).

9.    In order to establish the scope of the court’s discretion under s. 6 of the law in conjunction with art. 2(3) of the convention, let us first turn to the language of these provisions. Section 6 of the law provides that the power of the court under s. 5 of the law — which deals, as aforesaid, with stay of proceedings — shall be exercised in accordance with and subject to the provisions of the convention governing the arbitration (para. 5 supra). Article 2(3) of the convention provides in mandatory language that the court ‘shall… refer’ the litigants to arbitration, unless one of the three exceptions listed in the article is satisfied (para. 6 supra). It would appear that the manner in which the two provisions are worded leads to the conclusion that if one of the three exceptions mentioned in art. 2(3) of the convention is not satisfied, then as a rule the court is required to order a stay of the proceedings. It should be noted that art. 4 of the Geneva Protocol, which includes a similar provision to the one in art. 2(3) of the convention, is also worded in a way that compels the court to refer the dispute to arbitration when the conditions set out therein are satisfied. Moreover, it appears that, according to the wording of the two aforesaid provisions, a situation in which there is a litigant who is not a party to the arbitration agreement does not fall within any of the three exceptions in art. 2(3) of the convention. As I shall clarify later, I am of the opinion that considerations concerning the purpose of s. 6 of the Arbitration Law and of art. 2(3) of the convention lead to a similar conclusion.

10. One of the main purposes of the convention is effective enforcement of international arbitration agreements, by means of setting uniform standards according to which such agreements will be enforced (A.J. van den Berg, The New York Arbitration Convention of 1958 — Towards a Uniform Judicial Interpretation (1981), at p. 4; regarding the importance of giving a uniform interpretation to the convention, see van den Berg at pp. 1-6). The concern that was expressed in this regard is that courts of the states that are parties to the convention will be deterred from sending local defendants to litigate within the framework of an arbitration proceeding in a foreign state, and for that reason will tend to refrain from honouring international arbitration agreements (see Scherk v. Alberto-Culver Co. [11], at footnote 15, and the references cited there). Such a situation is likely to cause substantial difficulty in achieving certainty, which is an essential component in the realm of international commerce. It is also likely to provide an incentive for parties to turn to the courts in their own country, in order to bring about a situation in which the dispute is adjudicated in the forum that is preferable to them. This ‘competition’ may result in conflicting decisions of courts in different countries, thereby increasing uncertainty and creating an undesirable situation. The aforesaid reasons led the United States Supreme Court to distinguish between international arbitration agreements, at least those that concern the commercial sphere, and arbitration agreements that do not have an international aspect. It was held that there are situations where international arbitration agreements should be honoured, even in cases where there would be no basis for honouring identical domestic arbitration agreements (Scherk v. Alberto-Culver Co. [11]; Mitsubishi Motors Corporation. v. Soler Chrysler-Plymouth, Inc. [12]). Against this background, let us now turn to examine comparative law in so far as it concerns the interpretation of art. 2(3) of the convention.

11. It would appear that there is a real similarity in the way in which art. 2(3) of the convention has been interpreted in many of the common law countries. The rule that has been laid down in this respect is that the clause is of a binding character. This means that if none of the three exceptions mentioned in the article apply, the court is required to stay the proceedings and refer the parties to an arbitration proceeding, without exercising any discretion in the matter (van den Berg, The New York Arbitration Convention of 1958 — Towards a Uniform Judicial Interpretation, supra, at pp. 135-137). The aforesaid rule is followed, inter alia, in the United States (Riley v. Kingsley Underwriting Agencies Ltd. [13]; Intergen N.V. v. Grina [14]), Canada (City of Prince George v. A.L. Sims & Sons Ltd. [15]; BWV Investments Ltd. v. Saskferco Products Inc. [16]) and England (Lonrho Ltd v. Shell Petroleum Company Ltd [18]). We should also point out that until the enactment of the Arbitration Act 1996, there existed in England a clear distinction, for the purposes of the issue of stay of proceedings, between domestic arbitration agreements and international arbitration agreements. Whereas with regard to domestic arbitration agreements the court had discretion not to order a stay of proceedings, with regard to international arbitration agreements the courts were obliged to order a stay of proceedings, unless one of the exceptions mentioned in the convention was satisfied. In 1996 the law was changed and now the English courts do not have discretion on the question of stay of proceedings even with regard to domestic arbitration agreements (D. Sutton and J. Gill, Russell on Arbitration (twenty-second edition, 2003), at pp. 18-19; with regard to the rule in England before the 1996 amendment, see M.J. Mustill and S.C. Boyd, Commercial Arbitration (second edition, 1989) at pp. 462-483).

Moreover, in addition to the rule that art. 2(3) of the convention is of a binding character, it has been held that a situation in which one or more of the defendants is not a party to the arbitration agreement does not fall within any of the three exceptions in art. 2(3) of the convention. In other words, the existence of a litigant who is not a party to the arbitration agreement does not make the arbitration agreement that exists between all or some of the other litigants null and void, inoperative or incapable of being performed. Therefore, in a situation of this kind, the court is obliged to order a stay of proceedings with regard to those litigants who are party to the arbitration agreement (Yearbook, Commercial Arbitration, vol. XXVIII–2003, 637-639; van den Berg, The New York Arbitration Convention of 1958 — Towards a Uniform Judicial Interpretation, supra, at pp. 161-168). This rule is followed, inter alia, in Canada (Kaverit Steel and Crane Ltd. v. Kone Corp. [17]; City of Prince George v. A.L. Sims & Sons Ltd. [15]) and in England (Lonrho Ltd v. Shell Petroleum Company Ltd [18]).

12. We see that considerations of certainty and the fear of international arbitration agreements not being honoured due to a preference for local litigants' interests, have led foreign courts to adopt an interpretational approach that restricts the scope of discretion with regard to a stay of proceedings vis-à-vis international arbitration agreements. In this respect, we should mention two additional considerations that are unique to the situation in which one of the litigants is not a party to the arbitration agreement: first, a significant number of arbitration agreements that stipulate to the holding of an arbitration in a foreign state also include a clause that applies the law of that state (or another foreign law) to the matter. If a stay of proceedings is not given with regard to such agreements because of the existence of an additional defendant who is not a party to the arbitration agreement, a question is likely to arise with regard to the law that should be applied to the dispute between the plaintiff and the defendant who is a party to the arbitration agreement. If we say that the court in Israel is required to apply the foreign law, then there will occur a split of a different kind to the one we mentioned: the dispute between the plaintiff and the defendant who is a party to the arbitration agreement will be decided according to the foreign law, whereas the dispute between the plaintiff and the defendant who is not a party to the arbitration agreement will be decided according to Israeli law. In such a situation there is a concern that conflicting decisions will be made, and therefore the justification underlying the refusal to stay proceedings is significantly weakened. On the other hand, if we rule that the whole matter should be decided in accordance with Israeli law, we shall find ourselves significantly changing the material rights of the parties to the arbitration agreement, in addition to giving judicial approval to the breach of the arbitration agreement. This increases the fear of uncertainty with regard to international arbitration agreements (for a discussion of this issue with regard to internal arbitration agreements, see the minority opinion of Justice M. Cheshin in Alrina Investment Corporation v. Barki Feta Humphries (Israel) Ltd [3], at pp. 406-408). Admittedly, in this case there is no express provision in the agreement concerning the applicable law, but we should remember that our ruling articulates a general principle. Moreover, Zuz does not claim that Israeli law governs the agreement. Even if the claim had been made, it would have been difficult to accept it. Agreeing to hold the arbitration in Texas certainly does not imply that Israeli law is applicable. Second, refraining from staying proceedings despite the existence of an international arbitration agreement, for the reason that one or more of the defendants are not party to the arbitration agreement, may create an additional difficulty. Admittedly, as a result of declining to stay the proceedings, a split of the case will be avoided, in the sense that the plaintiff’s action against the defendant who is a party to the arbitration agreement — which should have been adjudicated within the framework of arbitration — will be decided together with the action against the defendant who is not a party to that agreement. However, this cannot prevent the defendant who is a party to the arbitration agreement from acting under the agreement and filing an action with regard to precisely the same matter before the arbitrator in the foreign country. This is what hotels.com has done in the case before us. The result would be that the dispute between the parties to the arbitration agreement would be split and heard before two different tribunals: the action of the one party will be heard by the courts in Israel, whereas the action of the other party will be decided by the arbitrator abroad. It thus follows that refraining from staying the proceedings, albeit preventing a split in one respect, creates a split of the proceedings in another respect, with all that this implies. In order to prevent this new split, the court in Israel will be required to issue an injunction against the defendant who is a party to the arbitration agreement, prohibiting him from continuing his action before the arbitrator and compelling him to litigate also as a plaintiff before the courts in Israel. This would result in another significant departure from the contractual consent between the parties to the arbitration agreement (with regard to an injunction restraining foreign proceedings, see CA 778/03 Inter-Lab Ltd v. Israel Bio Engineering Project [7]).

13. I am of the opinion that the aforementioned considerations lead to the conclusion that the court’s scope of discretion under s. 6 of the law, together with art. 2(3) of the convention, is significantly narrower than its scope of discretion under s. 5 of the law. When dealing with arbitration that is governed by the convention and the relevant requirements in s. 6 of the law and art. 2(3) of the convention (such as the requirement that the stay of proceedings has been requested by a litigant who is a party to the arbitration agreement) are satisfied, as a rule the court is required to order a stay of proceedings unless one of the three exceptions in the aforesaid art. 2(3) exists (for support for this position, see Ottolenghi, at pp. 150-156; for a discussion of the question of the existence of the requirements listed in s. 6 of the law and in art. 2(3) of the convention, cf. Mediterranean Shipping Co. S.A. v. Crédit Lyonnais (Suisse) S.A. [6]). This result is consistent with the language of the law and with the language of the convention. It is also consistent with one of the main purposes of art. 2(3) of the convention: promoting legal certainty with regard to international arbitration agreements, by removing the concern that courts in the various countries will tend to prefer the interests of the local litigant, and therefore will refrain from honouring international arbitration agreements that stipulate to legal proceedings in a foreign country. I am prepared to assume that there may be exceptional cases in which the court may refuse to stay proceedings, even if none of the aforesaid three exceptions is satisfied. However, these cases will be rare (cf. Etri Fans Ltd v. NMB (UK) Ltd [1987] 2 All ER 763). It should be emphasized that our decision in these proceedings concerns only arbitrations that are governed by the New York Convention. It is possible that in certain cases another international convention will apply. As stated above, s. 6 of the law provides that when the arbitration is governed by an international convention to which Israel is a party, and the convention includes provisions concerning a stay of proceedings, the court shall exercise its authority under s. 5 of the law ‘in accordance with those provisions and subject thereto’.

14. Indeed, no one disputes that there are weighty reasons that support a refusal to stay proceedings in cases where some of the litigants are not parties to the arbitration agreement, at least in certain circumstances (for details of the reasons, see the minority opinion of Justice M. Cheshin in Alrina Investment Corporation v. Barki Feta Humphries (Israel) Ltd [3], at p. 405). These reasons are what led the majority in Alrina Investment Corporation v. Barki Feta Humphries (Israel) Ltd [3] to the conclusion that within the framework of s. 5 of the law, the court may, in circumstances of this kind, refuse to stay proceedings notwithstanding the existence of an arbitration agreement, provided that the two-stage test is satisfied (see para. 4 supra). In any case, it should be remembered that we are concerned with arbitration agreements that are subject to the convention, and are therefore governed by s. 6 of the law, and not with domestic arbitration agreements, which are governed by s. 5 of the law. With regard to international arbitration agreements it should be held that the fact that there is a litigant who is not a party to the arbitration agreement does not fall within any of the three exceptions in art. 2(3) of the convention. In other words, this circumstance does not constitute, as a rule, a reason for the court to refuse to order a stay of proceedings, in so far as arbitration agreements that fall within the scope of s. 6 of the law are concerned. The District Court therefore erred in refusing to stay the proceedings for the reason that Hotels Online, which is one of the defendants in Zuz’s action, is not a party to the arbitration clause.

Additional arguments

15. In its response to the application for leave to appeal, Zuz raises additional arguments that do not concern the question of the interpretation of s. 6 of the law and art. 2(3) of the convention, which we have discussed up to this point. I shall address two of these arguments, which require consideration. According to Zuz, hotels.com acted in bad faith when it submitted the arbitration request in the United States. As aforesaid, this request was submitted in August 2004, after the lower court gave its decision and after the application for leave to appeal was filed before us. Despite this, within the arbitration request hotels.com refrained from mentioning the existence of the proceedings taking place in Israel, including the decision of the District Court. According to the argument, the aforesaid manner of conduct is sufficient to lead to the denial of the application of hotels.com. Admittedly, in certain circumstances the appeals court may take into account events that took place after the decision of the lower court was issued. I am also prepared to assume that the duty of good faith extends also to proceedings under ss. 5 and 6 of the law (see the opinion of President M. Shamgar in Mediterranean Shipping Co. S.A. v. Crédit Lyonnais (Suisse) S.A. [6], at p. 127). Notwithstanding, I cannot accept Zuz’s argument. The subject of the District Court’s decision is the application for a stay of proceedings in an action filed by Zuz, on the grounds that there is an arbitration clause. The decision does not deal with a future action of hotels.com against Zuz. All that was held in the decision is that there is no basis for a stay of proceedings with regard to the action of Zuz against hotels.com. Since this is the case, it cannot be said that the arbitration request filed by hotels.com in the United States is tainted by bad faith. Admittedly, within the arbitration request, hotels.com should have mentioned the proceedings that are taking place in Israel and the decision of the lower court. However, I am of the opinion that the failure to mention this fact does not, in and of itself, justify denying the appeal. I will further add that the concern of a split in the litigation between two different tribunals, which has occurred de facto in this case, is one of the reasons that led me to the conclusion concerning the proper interpretation of s. 6 of the law and art. 2(3) of the convention (see para. 12 supra).

16. Another issue raised by Zuz in the proceeding before us concerns the position of hotels.com with regard to the validity of the agreement. According to Zuz, during the proceeding in the lower court hotels.com tried to advance contradictory arguments: on the one hand, it argued that the arbitration clause in the agreement should be honoured, and on the other hand it refused to admit entering into the agreement. According to Zuz, in these circumstances we should apply the rule determined in Mediterranean Shipping Co. S.A. v. Crédit Lyonnais (Suisse) S.A. [6] and refuse to stay the proceedings. This argument should also be rejected. An inspection of the pleadings filed in the lower court shows that hotels.com did not deny the existence of the agreement, and certainly did not do so expressly. The fact that hotels.com does not deny entering into the agreement is also apparent from the proceeding before us. In any case, the fact that hotels.com itself filed an arbitration request based on the arbitration clause in the agreement shows that it is not seeking to deny entering into this agreement.

17. The result is that the appeal is allowed, and the decision of the District Court, insofar as it concerns the issue of a stay of proceedings, is nullified. The proceedings in Zuz’s action against hotels.com are stayed. Consequently, the temporary relief granted by the District Court on 19 September 2004, is set aside. There is no basis for ordering, within this proceeding, a stay of proceedings against Hotels Online, which is not a party to the agreement. Zuz is liable, with regard to both proceedings, for the legal fees of hotels.com in a sum of NIS 60,000 and for court costs.

 

 

Vice-President M. Cheshin

I agree.

 

 

Justice E. Arbel

I agree with the comprehensive opinion of my colleague Justice A. Grunis and like him I recognize the importance of effective enforcement of international arbitration agreements by adopting uniform and clear rules that will allow the enforcement and implementation of such agreements, including in circumstances where one or more of the litigants is not a party to the arbitration agreement.

 

 

Application granted. Appeal allowed.

3 Elul 5765.

7 September 2005.

 

 

 

HCJ 5016/96

HCJ 5025/96

HCJ 5090/96

HCJ 5434/96

HCJ 5016/96

HCJ 5025/96

 

Lior Horev
Member of Knesset Ophir Pines
Member of Knesset Yosef Sarid
Arnon Yakutiali
Aliza Avinezer
Yehuda Gabay
Meretz-Democratic Israel Faction    
The Association for the Rights of the Religious Community in Israel

v.

The Minister of Transportation

 

The Supreme Court of Israel sitting as the High Court of Justice

[April 13,1997]

Before President A. Barak, Deputy President S. Levin, Justices T. Or, E. Mazza, M. Cheshin, Ts. A. Tal, D. Dorner

 

Petition to the Supreme Court sitting as the High Court of Justice.

 

Facts: The Minister of Transportation, assuming the powers of the Traffic Controller, ordered the closure of Bar-Ilan Street in Jerusalem to motor traffic on Sabbaths and Jewish holidays during hours of prayer. Petitioners are secular residents of the area and representatives of the secular population in Jerusalem, who claim that the decision of the Minister infringes their right to freedom of movement. One petitioner—the Association for the Rights of the Religious Community in Israel—counter-petitioned that Bar-Ilan should be closed to motor traffic for all hours on the Sabbath and Jewish holidays.

 

Held: The Court held that the Traffic Controller was to weigh the freedom of movement of those who chose to use Bar-Ilan Street against the possible injury of such traffic to the religious sensibilities and lifestyle of the local residents. The Court noted that the latter consideration was a valid one in a democratic society. The Court held that the Minister of Transportation, in his capacity as the Traffic Controller, did not adequately consider the interests of the local secular residents of Bar-Ilan Street. As such, the Court struck down the Traffic Controller's decision. Several dissenting Justices contended that the Minister had no authority at all the close Bar-Ilan Street to traffic.

 

Israeli Supreme Court Cases Cited

HCJ 174/62 The League for the Prevention of Religious Coercion v. Jerusalem City Council, IsrSC 16 2665.
HCJ 531/77 Baruch v. The Traffic Comptroller, IsrSC 32(2) 160.
HCJ 390/79 Dawikat v. The Government of Israel, IsrSC 34(1) 1.
HCJ 935/87 Poraz v. Mayor of Tel-Aviv/Jaffa, IsrSC 42(2) 309.
HCJ 98/54 Lazarovitch v. Food Products Comptroller (Jerusalem), IsrSC 10 40.
HCJ 3872/93 Meatrael v. The Prime Minister, IsrSC 47(5) 485.
HCJ 217/80 Segal v. Minister of the Interior, IsrSC 34(4) 429.
HCJ 351/72 Keinan v. The Film and Play Review Board, IsrSC 26(2) 811.
HCJ 806/88 Universal City Studios Inc. v. The Film and Play Review Board, IsrSC 43(2) 22.
HCJ 230/73 S.T.M. v. Mayor of Jerusalem—Mr. Teddy Kolek, IsrSC 28(2) 113. 
HCJ 7128/96 The Temple Mount Faithful v. The Government of Israel, IsrSC 51(2) 509.
Crim. App. 217/68 Izramax. v. The State of Israel, IsrSC 22(2) 343.
HCJ 612/81 Shabbo v. Minister of Finance, IsrSC 36(4) 296.
F. Crim. A2316/95 Ganimat v. The State of Israel, IsrSC 49(4) 589.
CA 506/88 Yael Shefer v. The State of Israel, IsrSC 48(1) 87.
HCJ 935/89 Ganor v. Attorney-General, IsrSC 44(2) 485.
IA 1/65 Yardor v. Chairman of the Central Election Committee, IsrSC 19(3) 365.
IA 2/84 Neiman v. Chairman of the Central Election Committee, IsrSC 39(2) 225.
CA 294/91 Jerusalem Burial Society  v. Kestenbaum, IsrSC 46(2) 464.
CA 105/92 Re’em Engineers and Contractors Ltd. v. Municipality of Upper Nazareth, IsrSC 47(5) 189.
HCJ 73/53 Kol Ha’Am Company Ltd. v. Minister of the Interior, IsrSC 7 871.
HCJ 153/83 Levy v. Southern District Commander of the Israel Police, 38(2)  393.
HCJ 448/85 Dahar v. Minister of the Interior, IsrSC 40(2) 701.
HCJ 148/79 Saar, v. Minister of the Interior and of Police, IsrSC 34(2) 169.
HCJ 399/85 Kahane v. The Broadcasting Authority, IsrSC 41(3) 255.
HCJ 153/87 Shakdiel v. Minister of Religious Affairs, IsrSC 42(2) 221.
HCJ 2481/93 Dayan v. Jerusalem District Commander, IsrSC 48(2) 456.
CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Agricultural Cooperative, IsrSC 49(4) 221.
FH 9/77 Israel Electric Company. v. “Ha’aretz” Newspaper Publications, IsrSC 32(3) 337.
HCJ 389/80 Dapei Zahav  v. The Broadcasting Authority, IsrSC 35(1) 421.
HCJ 376/81 Lugassy v. Minister of Communications, IsrSC 36(2) 449.
HCJ 341/81 Moshav Beit-Oved Ltd. v. Traffic Comptroller, IsrSC 36(3) 349.
HCJ 910/86 Ressler v. Minister of Defense, IsrSC 42(2) 441.
HCJ 953/89 Indoor v. Mayor of Jerusalem, IsrSC 45(4) 683.
HCJ 14/86 Laor v. The Film and Play Review Board, IsrSC 41(1) 421.
HCJ 6163/92 Eizenberg v. Mistster of Construction and Housing, IsrSC 47(2) 229.
HCJ 4541/94 Miller v. Minister of Defense, IsrSC 49(4) 94.
HCJ 693/91 Efrat v. Population Registrar, IsrSC 47(1) 749.
HCJ 257/89 Hoffman v. Appointee over the Western Wall, IsrSC 48(2) 265.
HCJ 549/75 Noah Film Company v. The Film and Play Review Board, IsrSC 30(1) 757.
HCJ 606/93 Kiddum Yezmot (1981) v. The Broadcasting Authority, IsrSC 48(2) 1.
HCJ 111/53 Kaufman v. Minister of the Interior, IsrSC 7 534.
Crim. A 255/68 The State of Israel v. Ben-Moshe, IsrSC 22(2) 427.
HCJ 243/81 Yeki Yosha v. The Film and Play Review Board, IsrSC 35(3) 421.
Crim. A 126/62 Disentzik v. The Attorney General, IsrSC 17 169.
HCJ 680/88 Schnitzer v. Chief Military Censor, IsrSC 42(2) 617.
HCJ 292/83 Temple Mount Faithful Association v. Jerusalem District Police Commander, IsrSC 38(2) 449.
HCJ 2725/93 Salomon v. Jerusalem District Commander, Israel Police, IsrSC 49(5) 366.
HCJ 5510/92 Turgeman v. Minister of Defense, IsrSC 48(1) 217.
HCJ 987/94 Euronet Kavei Zahav (1992) Ltd. v. Minister of Communications, IsrSC 48(5) 412.
HCJ 3477/95 Ben-Attiyah v. Minister of Education, Culture, and Sport, IsrSC 49(5) 1.
HCJ 1064/94 Computext Rishon Le Zion (1986) Ltd. v. Minister of Transportation, IsrSC 49(4) 808.
HCJ 287/69 Miron v. Minister of Labour, IsrSC 24(1) 337.
HCJ 672/87 Atamalla v. Northern Command, IsrSC 42(4) 708.
P.L.A. 6654/93 Binkin v. The State of Israel, IsrSC 48(1) 290.
HCJ 3914/92 Lev v. Tel-Aviv/Jaffa District Rabbinical Court, IsrSC 48(2) 491.
HCJ 297/82 Brenner v. Minister of the Interior, IsrSC 37(3) 29.
HCJ 2911/94 Baki v. Director General of the Ministry of the Interior, IsrSC 48(5) 291.
HCJ 2918/93 Municipality of Kiryat-Gat v. The State of Israel, IsrSC 47(5) 832.
HCJ 161/80 San Tropez Holtel Ltd. v. Israel Lands Authority, IsrSC 34(4) 709.
HCJ 465/93 Tridet v. Local Council for Planning and Building, Herziliya IsrSC 48(2) 622
HCJ 400/89 Levitt v. President of the Military Tribunal, Southern District, IsrSC 43(3) 705.
HCJ 166/71 Halon v. Head of the Local Council of Ousfiah, IsrSC 25(2) 591.
HCJ 155/60 Elazar v. Mayor of Bat-Yam, IsrSC 14 1511.
HCJ 512/81 The Archeological Institute of the Hebrew University, Jeruslaem v. Minister of Education and Culture, 35(4)  533.
HCJ 5277/96 Hod Matechet Ltd. v. Minister of Finance, IsrSC 50(5) 854.
HCJ 398/79 Abdallah v. Mayor of Nazareth, IsrSC 34(1) 522.
HCJ 379/71 Levy v. Municipality of Petach-Tikvah, IsrSC 26(1) 785.
HCJ 112/88 The Local Council for Planning and Building, Ramat-Gan v.  The District Committee for Planning and Building, Tel-Aviv District, (unreported case).
HCJ 1869/95 Gasoline Import Company v. Minister of Transportation, IsrSC 49(5) 559.
HCJ 6111/94 Guardians of the Tradition  v. The Chief Rabbinical Council of Israel, IsrSC 49(5) 94.
P.Cr. A. 6795/93 Aggadi v. The State of Israel, IsrSC 48(1) 705.
HCJ 4267/93 A.M.I.T.I—Citizens for Efficient Government v. The Prime Minister of Israel, IsrSC 47(5) 441.
HCJ 4712/96 Meretz-Democratic Israel Faction v. Jerusalem District Commander, Israel Police, IsrSC 50(2) 822.
HCJ 122/54 Axel v. Mayor  of  Netanya, IsrSC 8 1524.
HCJ 72/55 Mendelson  v. Municipality of Tel-Aviv/Jaffa, IsrSC 10 734.
HCJ 1520/91 Vilensky v. National Labor Court, IsrSC 46(5) 502.
HCJ 150/69 Reich v. Head of the Antiques and Museums Administration, IsrSC 24(1) 204.
HCJ 70/50 Michlin v. Minster of Health, IsrSC 4 319.
HCJ 74/51 The National Center of Contractors Associations v. Minister of Commerce and Industry, IsrSC 5 1544.
HCJ 231/63 Retef Food Supplies. v. Minister of Commerce and Industry, IsrSC 17 2730.
HCJ 392/72 Brenner v. District Committee for Planning and Building, Haifa District, IsrSC 27(2) 764.
HCJ 4676/94 Meatrael Ltd. v. The Knesset, IsrSC 50(5) 15.
HCJ 4769/90 Zidan v. Minister of Labor and Welfare, IsrSC 47(2) 147.

 

United States Cases Cited:

Kent v. Dulles, 357 U.S. 116 (1958).
People v. Grant, 117 N.E. 2d 542 (N.Y. Ct. Appeals 1954).
NYS Public Emp. Fed. v. City of Albany, 527 N.E. 2d 253 (N.Y. Ct. Appeals 1988).

 

English Cases Cited:

Ex parte Lewis (1888) 21 Q.B D. 191.
Vanderplant v. Mayfair Hotel Co. (1930) 1 Ch. 138.

 

German Cases Cited:

 6 BverfGE 32 (1957).

 

Israeli Books Cited:

1-2, I. Zamir, The Administrative Authority (1996).
1 A. Rubinstein, The Constitutional Law of the State of Israel (1997).
2 A. Barak Interpretation in Law: Interpretation of Legislation (1993);
3 A. Barak Interpretation in Law: Constitutional Interpretation (1993);
R. Cohen-Almagor, The Limits of Tolerance and Tolerance—Liberal Theory and the Struggle Against Kahanism (1994).
Y. Weisman, Property Law (1993).
H. Klinghoffer, Administrative Law (1957)
S. Eizenstadt, Roman Law: Its History and Substance (1954)
B. Bracha, Administrative Law (1996).
Y. Dotan, Administrative Guidelines (1996).

 

Israeli Articles Cited

A. Barak, Freedom of Expression and its Limitations, 40 HaPraklit 5 (1991-1993).
Z. Segal, The Grounds for Disproportionality in Administrative Law, 39 HaPraklit 507 (1990-1991).
I. Zamir, Israeli Administrative Law as Compared to the Adminstrative Law of Germany, 2 Mishpat U’Mimshal 109 (1994-1995).
H. Klinghoffer, An Empowered Authority’s Internal Guidelines—Their Validity, 3 Hod Hamishpat 38 (1948)

 

Foreign Books Cited:

R.M. Dworkin, A Matter of Principle (1985).
R.W. League, Roman Private Law (3rd ed. 1961).

 

Foreign Articles Cited:

F. Schauer, Slippery Slopes, 99 Harv. L. Rev. 361 (1986).

 

Miscellaneous:

31 The Jewish Encyclopedia (1979).

 

The Laws of England (4th ed. 1995).

 

Jewish Law Sources Cited:

Babylonian Talmud, Tractate Beitza 16a.
Habbakuk 2:4
Isaiah 36:6
Numbers 22:21-22.
Mishna, Tractate Baba Bathra 6:7.

 

Tractate Baba Bathra, With the Modern Commentary of Shimon Ben-Shemen 92b (1981)
Babylonian Talmud, Tractate Baba Bathra, 99b-100a
Babylonian Talmud, Tractate Nedarim 39a.
Proverbs 3:17.
Exodus 31:16-17.
Jeremiah 17: 24-27.
Ezekiel 20.
Amos 8.
Nehemia 9, 10, 13.
Jerusalem Talmud, Tractate Brachot 1:8.
Babylonian Talmud, Tractate Shabbat 119b.
The Book of Sabbath: The Sabbath Portion, its Value, its Manifestation and Influence in the Lives of the People of Israel in Ancient Times and Until Today (1963).
A.J. Heschel, The Sabbath: Its Meaning for Modern Man (1951).
Midrash Leviticus Rabbah 32A

 

JUDGMENT

President A. Barak

1. In Israeli public discourse, Bar-Ilan Street is no longer simply a street. It has become a social concept reflecting a deep-seated political dispute between the Ultra-Orthodox and the secular populations in this country.  This debate is not limited to the matter of freedom of movement on Bar-Ilan Street on Friday evenings and on the Sabbath. It is, in essence, a difficult debate involving the relationship between religion and state in Israel, which pierces through to Israel’s very character as a Jewish or a democratic state. It is a bitter debate about the character of Jerusalem, which has found its way to the Court’s doorstep.  This being the case, it is incumbent upon us to decide this case irrespective of its political and social ramifications. The dispute before us is a legal one.

Our concern is with the scope of the Central Traffic Authority’s powers under Regulation 17 of the Traffic Regulations-1961. More specifically, the issue at bar involves the scope of the Central Traffic Authority’s discretion to direct its local counterpart in regulating traffic on Bar-Ilan Street, so that the street will be closed to traffic during certain hours during the Sabbath. The answer to these questions must be drawn from the Regulation’s wording and purpose.  Our decision will be made in accordance with legal criteria, as has always been the practice in Israel. For this Court has dealt with similar issues in the past.  Indeed, this Court ruled on the closing of a particular section of King George and Shmuel HaNagid streets in Jerusalem during morning hours of the Sabbath and Jewish festivals, in order to avoid disturbing worshippers at the “Yeshurun” Synagogue over thirty years ago. See HCJ 174/62 The League for Prevention of Religious Coercion v. Municipality of Jerusalem [1]. In a similar vein, twenty years ago, this Court decided to close a certain section of HaShomer Street in Bnei Brak on the Sabbath and Jewish holidays. See HCJ 531/77 Baruch v. Tel-Aviv District Central Traffic Supervisor [2].  And so, this time too, we will decide these matters according to legal criteria. Significantly, our concern is not with the social debate; our considerations are not political. Rather, we are concerned with the legal dispute, with normative considerations. Our concern is not with the relationship between the secular and the religious in Israel; nor is it with the relationship between religion and state in this country. Nor is our concern the character of Jerusalem. We are simply concerned with Bar-Ilan Street, in its literal sense, and with the Central Traffic Authority’s powers and the scope of its discretion. We will examine the balance between the freedom of movement and any resulting injury to religious sensibilities and the observant way of life.

This having been said, I am well aware that many members of the public will not read our decision. Their interest will lie with the social ramifications of our decision, not with the legal reasoning underlying it. They will not examine our normative considerations and will occupy themselves with the political ramifications of our ruling. We are quite conscious that our legal decision will have extra-legal ramifications. This, we cannot prevent. Our judicial role obligates us to rule on the state of the law in accordance with our best understanding. In this context, I need only cite the words of Acting President Landau, who in HCJ 390/79 Dawikat v. The Government of Israel [3], at 4, wrote:

There is still great fear that the Court will appear to have abandoned its proper role and to have descended into the whirlwind of public debate; that its decision will be acclaimed by certain segments of the public, while others will reject it absolutely. It is in this sense that I see myself as obligated to rule in accordance with the law on any matter properly brought before the Court. I am forced to rule in accordance with the law, in complete awareness that the public at large is not interested in the legal reasoning behind our decision, but rather in the final result. Conceivably, the stature of the Court as an institution that stands above the arguments that divide the public will be damaged.  But what can we do, for this is our role and our obligation as judges.

In dealing with the Bar-Ilan case, I cannot help but feel as Justice Landau felt in Dawikat [3], but what can I do? This is my role and this is my obligation.

2. I begin with a description of the factual background, based on the briefs before us and upon an examination of the material before the Public Committee Appointed for the Purpose of Making Recommendations Regarding Sabbath Traffic on Bar-Ilan Street [hereinafter the Tzameret Committee.] Subsequent to the factual description, I shall examine the normative framework. Within the confines of this framework, I will proceed to address the principles in question. Namely, to what extent it is possible to limit human rights, in order to spare human feelings. I will also address the issue of whether it is possible to limit freedom of movement because of the harm caused to religious sensibilities. I shall conclude by applying the general law to the particular instance at bar.

The Facts

3. Bar-Ilan Street is a main traffic artery. Its length (including a segment of Yirmiyahu Street) is approximately 1.2 kilometers. In its southern section, it joins Yirmiyahu Street, reaching the entrance to the city. To the north, it merges with Harel Brigade Street, which becomes Eshkol Boulevard. Bar-Ilan Street connects the city entrance to Jerusalem’s northern neighborhoods, including Ramat-Eshkol, Ma’alot Dafna, Givat Shapira, and Pizgat Ze’ev. Bar-Ilan Street cuts through an Ultra-Orthodox neighborhood. It serves the residents of this neighborhood. It also serves those who, entering the city, wish to reach its northern neighborhoods, or those who, leaving Jerusalem's northern neighborhoods, wish to exit the city. It also serves the residents of those northern neighborhoods who enter the city for services and commerce. The volume of traffic on Bar-Ilan on weekdays is great. The traffic on Sabbaths and holidays is less significant, approximately 21-28 percent of weekday traffic.

4. Up until the Six Day War, Bar-Ilan Street was situated at the periphery of Ultra-Orthodox neighborhoods, which were located to its east. After the Six Day War, two phenomena occurred. First the Ultra-Orthodox neighborhoods exapanded west of Bar-Ilan, transforming it from a peripheral street to one that cuts through the heart of the Ultra-Orthodox areas, which now envelop the street on both its sides. Second, after the Six Day War, the northern neighborhoods were built. Bar-Ilan Street became the main traffic artery that connected the central part of the city to its northern neighborhoods.

5. Since the Israel's establishment, and even before that, there have been clashes between the Ultra-Orthodox and secular populations in Jerusalem over traffic flow on the Sabbath. Demonstrations in Jerusalem around “Sabbath Square” took place at the beginning of the 1950s. Nearing the mid-1950s, these demonstrations spread to Jaffa Street, Beit HaDegel Square (“Dvidka Square”), Herzl Boulevard, and the Etz Haim neighborhood, situated at the entrance to the city. During the early 1960s, the city of Jerusalem discussed a proposal regarding the prevention of some traffic on the Sabbath. Following this proposal, the street near the “Yeshurun” synagogue was closed to traffic on the Sabbath during prayer times. This was done in reliance on a similar precedent in Tel-Aviv and Haifa. The petition challenging this decision was rejected. See League [1].

The tension between the secular and the religious increased during the 1960s and the 1970s. Essentially, these tensions revolved around the opening of swimming pools and the City Stadium. The clashes around the issue of Sabbath traffic were renewed and have persisted since the 1970s. This debate was sparked by a dispute over Ramot road, which connects the Ramot neighborhood to the downtown area. In the midst of these clashes, the Jerusalem municipality closed dozens of streets located in Ultra-Orthodox and other religious neighborhoods to traffic on the Sabbath.

6. The first of the demonstrations by Ultra-Orthodox groups on Bar-Ilan Street occurred in 1988. This struggle escalated following the street’s one-time closure in June of 1991, on the occasion of the Satmar Rebbe’s visit, and in November of 1995, on the occasion of the Vishnitzer Rebbe’s visit. Moreover, the Ultra-Orthodox voters’ increasing political clout gave rise to heightened expectations among the Ultra-Orthodox public that the street be closed to traffic on the Sabbath. In addition, the availability of surrounding streets, paved through the years, which could potentially serve as alternate routes, strengthened the Ultra-Orthodox belief that the secular public should accede to their request and refrain from traveling in their midst on the Sabbath.

Conversely, the request to close Bar-Ilan Street to traffic was perceived by the secular public as the continuation of an ongoing policy to effectively push the non-Ultra-Orthodox population out of Jerusalem. As a result, counter-demonstrations took place, accompanied by violent clashes. Against this backdrop, in August of 1994, the Mayor of Jerusalem, Mr. Ehud Olmert, appointed a committee headed by Mr. Elazar Sturm [hereinafter the Sturm Committee].

7. The Sturm Committee held a significant number of meetings. Dozens of city residents, among them representatives of neighborhoods, parties, and interested bodies, appeared before the Committee. The Committee heard from experts in the fields of transportation, geography, sociology, law and religion. In its report of September 29, 1995, the Committee noted:

The issue of traffic on the Sabbath divides Jerusalem’s populace deeply. Solutions befitting the conflicting interests of the city’s residents must be found. The situation is difficult and complicated. Accordingly, our examination was conducted in the spirit of compromise and in careful analysis of the conflicting needs. The testimony before the Committee, from every shade of the social and political rainbow, religious and secular, reflected agreement and broad understanding. There is general agreement in favor of respecting the request of many religious neighborhoods to foster a public atmosphere befitting their own religious lifestyle, while bearing in mind the needs of others.

Against this backdrop, the Committee recommended closing particular streets, such as Keter Sofer Street, Shmuel HaNavi Street and Brandeis Street. It also recommended closing the neighborhood of Har-Nof to traffic on the Sabbath and Jewish holidays. Having said this, the Committee did note that it recommended leaving access routes open to secular residents and their visitors. Accordingly, it called on secular residents to inform them of their place of residence. Only after the secular residents’ places of residence were mapped out and the relevant roads and accessways clearly marked, would the Committee make its recommendations. Additionally, the Committee decided not to recommend closing other streets, such as Malchei Yisrael Street, Yam-Suf Street, and Michlin Street. With respect to Bar-Ilan Street, it recommended that:

Bar-Ilan Street be closed during prayer times on Sabbaths and Jewish holidays.

More specifically, the Committee recommended that the street be closed on the eve of the Sabbath, from the beginning of the Sabbath (sunset) to an hour and forty-five minutes thereafter; on the Sabbath day the street would be closed from 7:30 a.m. to 11:30 a.m.. Bar-Ilan would also be closed for an hour and forty five minutes prior to the end of the Sabbath. It shall be noted that one of the Committee’s members, Mr. Yitzhak Rubin, opposed closing the street during prayer hours, noting that the street is a main traffic artery.

8. While the Sturm Committee was still at work, the local and national media published articles regarding its recommendations. On the heel of these publications, November 29, 1994, Mr. Langer, the National Traffic Controller, approached the Mayor, Mr. Ehud Olmert, regarding Bar-Ilan Street. In his letter Mr. Langer stated that:

In light of publications in the media and the situation on the street itself, I found it appropriate to apprise you of our position on the matter. The Ministry of Transportation considers Bar-Ilan Street to be a main traffic artery, connecting Jerusalem’s northern neighborhoods to the city’s center and south, every day of the week. It would be unthinkable to close this route to traffic on the Sabbath or on any other day. Arrangements to close streets on the Sabbath are only feasible on local streets, following a careful examination, and certainly not on important, central arteries.

9. Jerusalem’s City Council deliberated the Sturm Committee’s report, and decided to close off a number of streets. In light of Mr. Langer’s letter, and in view of the city’s legal advisor’s position, the Council held: “Jerusalem’s City Council does not have the discretion to close off Bar-Ilan Street to traffic on Sabbaths and Jewish holidays.” The Council added that it will take note of the Sturm Commisttee’s recommendations and forward them to the Minister of Transportation “with a recommendation to consider the plight of the local public.”

10. A number of requests to close off Bar-Ilan Street on the Sabbath reached the Minister of Transportation, Mr. Israel Kaiser. A meeting was held, on January 10, 1996, between the Minister and residents of Bar-Ilan Street—a meeting that Mr. Langer also attended. In concluding the meeting, the Minister asserted that:

the Traffic Controller is the highest professional authority in this area, and I, as Minister of Transportation, must act in accordance with his professional opinion. The Traffic Controller’s professional opinion is that this street is a main traffic artery and therefore cannot be closed on the Sabbath. I will only be able to change this decision if the Traffic Controller is swayed by the data presented here before him, and decides that, on Sabbaths during prayer times, the street may be closed. As I have said, the decision shall be on a professional basis, and if there is room to take a more lenient view—as the House of Hillel did in the times of the Talmud—I shall take that path. If, however, the Traffic Controller does not change his professional opinion, we will only close the street if the government or the Court compels us to do so.

Minister Kaiser concluded his meeting with the Mayor of Jerusalem, on February 13, 1996, on a similar note. During all this time, demonstrations against Sabbath traffic on Bar-Ilan Street grew more violent. The police were forced to intervene and traffic in the area was disrupted.

11. In May of 1996, Rabbi Yitzhak Levi was named the new Minister of Transportation. The National Traffic Controller, Mr. Langer, listened to the position of the new Minister, who noted that he had received many complaints regarding the offense to the sensibilities of the local Ultra-Orthodox public on Bar-Ilan Street. The Minister expressed his opinion that a compromise solution was desirable and notified Mr. Langer that, in light of the issue's ramifications, he planned on meeting with Israel’s President to discuss it.  After meeting with the President, the Minister of Transportation informed Mr. Langer that the President also believed in reaching a compromise regarding Bar-Ilan Street. Mr. Langer consulted with professionals—with the Ministry of Transportation’s Chief Engineer and with its Legal Advisor. He revisited and reconsidered his original stance. After this assessment, Mr. Langer became convinced that he should change his previous decision.

12. On July 10, 1996, Mr. Langer submitted a new decision. According to this decision, Bar-Ilan Street was to be closed to traffic, in both directions, on the Sabbath and Jewish holidays, during prayer times. On Friday evenings and holiday eves the street would be closed from 6:30 p.m. to 9 p.m.; on Saturdays and Jewish holidays from 7:30 a.m. to 11:30 a.m., and from 5 p.m. to 8:30 p.m. This traffic arrangement would be in force for a four month period. Intersections themselves would remain open to traffic. During this period, the impact on traffic in the area would be monitored. The Minister of Transportation informed the Knesset of his decision—a decision which the current petitions challenge.

The Petitions

13. The first petition before us (HCJ5016/96) was filed by Lior Horev, a resident of Jerusalem active in the struggle against the street’s closure.  He claims that the decision was illegal, as it was taken without consulting the Mayor or the residents of the affected secular neighborhoods.  The petitioner further maintains that the decision is patently unreasonable, for it involves the permanent closure of a central traffic artery for a number of hours, as distinguished from a temporary closure for a particular event.  The petitioner claims that the decision is based on political considerations. He also noted the problem with impeding the freedom of movement of emergency and security vehicles.  Indeed, Bar-Ilan Street is used by such vehicles for the purpose of reaching the hospital on Mount Scopus.  Consequently, the petitioner requests that we declare the Minister’s decision invalid and issue a temporary restraining order, until we render a final decision.

14. The second petition (HCJ 5025/96) was filed by Member of Knesset Ophir Pines, a resident of the neighborhood of Ramot. M.K. Pines argues that he is liable to be harmed by the Traffic Controller’s decision. He claims that the Minister forced the Traffic Controller to decide as he did.  The decision, he submits, is patently unreasonable, for it leaves entire neighborhoods in Jerusalem without any reasonable alternative routes. Nor, he claims, did the respondents consult with representatives of the secular public prior to adopting the decision.  He further contends that the placing of traffic signs, such as the ones indicating Bar-Ilan’s closure, is a regulatory act that requires official publication.  There was no such publication and the new traffic regulations were made without proper authorization, when both the Prime Minister and the Mayor were overseas. The petitioner further emphasized that the parallel road, Yechezkel Street, had already been closed to traffic on the Sabbath and holidays in order to meet the religious needs of the Ultra-Orthodox public. Thus, closing Bar-Ilan Street would impose a total detour of about nine kilometers on motorists. The petitioner therefore requests that the Court strike down the Traffic Controller’s decision. He also requests that we issue an interim order, prohibiting the placing of traffic signs, pending a final resolution.

15. Knesset Member Yosef Sarid and others filed the third petition (HCJ 5090/96).  They argue that limiting traffic on Bar-Ilan Street on Sabbaths and festivals is a matter that should be determined by the Knesset, as it impacts basic civil rights. It was further argued that the decision was taken without consulting with the Prime Minister, the Head of the Regional Authority, the Head of the Local Traffic Authority, or with residents who were likely to be harmed by the decision. Petitioners maintain that a better solution would be to build pedestrian walkways over Bar-Ilan Street. 

Petitioner number three is a resident of Tzefania Street, adjacent to Bar-Ilan. She works at Hadassah Ein Karem Hospital. Petitioner number three claims that closing Bar-Ilan Street on Sabbaths and festivals will force her to park her car about a kilometer away from her home and that, if she decides to visit her brother, also a resident of Jerusalem, she will have to walk about five kilometers. Petitioner number four is a disabled Israel Defense Force (IDF) veteran, with restricted mobility. His parents live on David Street, which intersects Bar-Ilan. He visits them every Friday and Sabbath.  Petitioner number four argues that closing the street will prevent him from seeing his parents on Sabbaths and holidays.  Petitioners also submit that the Controller’s decision was made under the pressure of the demonstrations of the local Ultra-Orthodox public. These demonstrations sometimes involved acts of violence, which ended in damage to both persons and property. They argue that the Controller’s decision would give dangerous legitimacy to such violence. We were therefore requested to strike down the Controller’s decision.

Issuing an Order Nisi and an Interim Order

16. The petitions were filed with the Justice on Duty, Justice D. Dorner, and transferred to a panel of justices, who decided that they would hear the petition the following day.  During the hearing, before President A. Barak, Justice E. Mazza and Justice D. Dorner, it was decided to issue an order nisi. The interim order was also granted. Respondent was given fifteen days to file a response. It was decided that, upon receiving respondent’s response, a date would be set for hearing the petition.

17.  After the order nisi was issued, an additional petition was filed (HCJ 5434/96). The petitioner was the Association for the Rights of the Religious Community in Israel. They request that we order the Traffic Controller and the Minister of Transportation to show cause as to why Bar-Ilan Street should not be completely closed on Sabbaths and holidays. They claim that these areas are completely and exclusively religious and Ultra-Orthodox. This being the case, the use of the road for traffic on Sabbaths and festivals injures the sensibilities of the residents of Bar-Ilan Street and its environs.  It also causes ongoing tension between this population and Jerusalem’s secular population.  As a result, there are repeated incidents of violence between these sectors of the public.  Petitioner also claims that traffic on the Sabbath endangers the welfare of the local population, for whom the road serves as a pedestrian promenade on the Sabbath.  It turns the Sabbath into a regular weekday, violating the beliefs by which the local residents abide. The secular population, they argue, has reasonable alternative roads on which to drive on the Sabbath.  The petition was filed with the Justice on Duty, again Justice D. Dorner, and an order nisi was issued as requested. A hearing was set and combined with the hearings of the other three petitions.

18. The continuation of the hearing of the four petitions was scheduled for August 15, 1996. The Traffic Controller’s response to the four petitions was submitted to the Court prior to this hearing.  With respect to the first three petitions, the Controller noted that, in his decision to partially and temporarily close Bar-Ilan Street, he had appropriately balanced between freedom of movement and the sensibilities of the religious residents of Bar-Ilan Street and its vicinity. Employing the information provided by the Sturm Committee, the Controller asserted that the volume of traffic on the Sabbath and festivals is only 12 per cent of the volume of traffic on regular days.  According to the Controller, his decision did not leave motorists without alternate routes. These alternative routes, however, do require longer trips.

19. According to the data submitted by the Traffic Controller, Bar-Ilan’s closure would mean that, instead of travelling 2.2 kilometers along the road, motorists wishing to reach the Sanhedria intersection from the entrance to the city to would have to turn left at the entrance to the city, at Route no. 4 (Mie Naftoach) and then turn right at Golda Meir Boulevard prior to reaching the Sanhedria intersection. The trip would be lengthened by only 1.5 kilometers and the time difference would be only two minutes.  For the residents of Jerusalem’s eastern neighborhoods (Katamon, Talpiot and the German Colony) as well as for residents of the city center, the direct route to the northern suburbs is via Route no. One. For residents of the western neighborhoods (Beth Hakerem, Kiryat Hayovel and Kiryat Menachem) an alternate route to the northern suburbs through Route no. Four is available, which, as stated above, lengthens the trip by only 2.2 kilometers. Residents of Jerusalem’s northern neighborhoods, for their part, can exit the city directly via Route no. Four to Tel-Aviv, as well as via Route no. 443 to Modi'in.

20. In light of this data, the Controller balanced the conflicting interests. He considered the intensity of the harm caused by alternate courses of action. He concluded that the appropriate balance between the relevant factors necessitated a partial closure of Bar-Ilan Street, during those times when a large portion of the religious population was on its way to or from the synagogue. As these times motor traffic along Bar-Ilan presents the greatest affront to religious sensibilities. Even so, the Traffic Controller was of the opinion that the closure ought to be on a temporary basis only.  During the period of the closure, the damage caused motorists using Bar-Ilan and its alternate routes would be examined.  The respondent’s position is that, “at this stage,” closing the road beyond prayer times should not be permitted.

21.   In his response, the Traffic Controller addressed the change in his position. He asserted that his initial response only addressed the strictly traffic-related aspects of the matter and failed to give full attention to the scope of the offense to the Ultra-Orthodox public’s sensibilities. His second decision was adopted following a renewed examination of all the circumstances. As a result, he is now convinced that the appropriate balance of the conflicting interests warrants the temporary, partial closure of Bar-Ilan Street during and around prayer times.

22. Further on in his response, the Traffic Controller discussed the arguments for consulting sections of the secular population.  The Controller contended that he was not under a duty to consult but that, as a matter of fact, he was aware of the positions of both the Ultra-Orthodox and the secular. He had studied the Sturm Report and had been apprised of the Jerusalem City Council’s stance regarding the Sturm Committee’s recommendations. The Traffic Controller also asserted that placing a traffic sign does not require official publication.

23. Regarding the inconvenience caused to petitioners three and four (HCJ 5090/96), the Traffic Controller contended that:

the reasonableness of an administrative decision in a case is assessed subsequent to balancing all the relevant interests. The fact that a particular individual suffers in a more serious way does not affect the reasonableness of the decision as a whole.

24. In his reply, the Traffic Controller specifically related to the petition in HCJ 5434/96, which requests that Bar-Ilan Street be completely closed for the entire Sabbath. He noted that even though the alternate routes only lengthen the commute by about two kilometers, this still constitutes an infringement of the city residents’ interests in general, and the interests of the residents of the northern suburbs in particular. Of course, their rights must be balanced against those of the Ultra-Orthodox population who live along the road, and their interest not to have their religious sensibilities offended on the Sabbath and festivals.   The appropriate balance between these conflicting interests, argues the Controller, warrants the partial closure of the road, during the Sabbath and festivals.  This closure will be temporary. After the trial period, the situation will be reexamined, with consideration for statistics regarding the volume of traffic on the street. Towards the end of his response, the Traffic Controller also raised the possibility of establishing an electric sign, which would advertise the times that the Sabbath and festivals commence and end. This sign would be connected to the traffic lights, and would facilitate the road’s closure at the precise times of prayers.

25. In view of the matter’s significance and at the request that the original panel of judges be broadened, I decided to add Deputy President S. Levin and Justices Or, Cheshin and Tal to the original panel. The hearing began on the August 15, 1996. At the start of the hearing, we ordered the joinder of a number of petitioners (HCJ 5341/96, 5354/96 and 5377/96) as respondents to the first three petitions. These respondents included the Committee of Tel-Arza and Bar-Ilan Street Neighborhoods. The Committee noted the numerous times it had approached the Minister of Transportation, Israel Kaiser, with requests that Bar-Ilan Street be closed.  These requests were appended with the petitions of rabbis, of institutions for Jewish learning and of thousands of residents, including a petition signed by 1,000 children, all of whom requested that the Bar-Ilan Street be closed to traffic on the Sabbath.  According to petitioner, those signing these petitions included “almost all of Bar-Ilan Street’s residents, house after house, religious, traditional and secular.” The Committee asserted that, on the Sabbath, “Bar-Ilan Street serves as a main artery for pedestrian traffic. Residents, together with their families, go to services three times a day, visit their rabbis and the homes of relatives and friends in the neighborhood, attend lessons in Torah, and go to the synagogue for the afternoon meal.  Children, after a week of long days in school, also attend services, and go to lessons, Psalm reciting groups, games and meetings with their friends. The pedestrian traffic on the Sabbath and festivals on Bar-Ilan Street involves thousands of people and is of a far greater scope than the motor traffic, which poses a serious danger to the pedestrians, particularly the children. In addition, according to petitioner, the presence of motor vehicles “disturbs prayers and Torah classes in the synagogues and infringes upon the Sabbath rest enjoyed by the local residents.”

According to the Committee, the proper solution is the absolute closure of Bar-Ilan Street to traffic on the Sabbath.  At minimum, the road should be closed in accordance with the Sturm Committee’s recommendations and the Traffic Controller’s decision. With respect to ambulances or other emergency vehicles, the Committee noted that these would be able to move freely. It asserted that “[w]ho is as well-known as the Ultra-Orthodox public and its volunteers for their commitment to saving lives and helping others?"  The Committee further contended that Bar-Ilan Street was only a vital traffic artery on weekdays. On the Sabbath, traffic is minimal and the road becomes “a traffic artery for pedestrians.”  The Committee also asserted that “almost 100% of the residents living in the vicinity of the Shmuel HaNavi and Jeremiah Streets, as far as Shamgar Street, are all religious or Ultra-Orthodox, and their religious sensibilities, convenience, and way of life should be taken into account.” In addition, it emphasized that the section of the road designated for closure contains over one hundred synagogues and religious institutions.  As for the violence of Ultra-Orthodox groups on Bar-Ilan Street, the Committee deemed these to be fringe groups, who do not reflect the views of the overwhelming majority of local residents. “It is well known that rabbis from all circles and communities have prohibited stone-throwing or any kind of violence at demonstrations, especially on the Sabbath, as such is prohibited by Jewish law.”

With respect to petitioner number three (HCJ 5090/96), the Committee submits that an ambulance would be able to pick her up on the Sabbath.  In addition, she would be able to obtain an ambulance sign for her car through the hospital. Regarding travel to members of her family, she would be able to do so during the hours when the street was open on the Sabbath. The same would apply to petitioner number four.

26. When the Minister of Transportation and the Traffic Controller began their oral arguments, the Court asked for further details from the National Traffic Controller, Mr. Langer. He answered our questions.  He provided us with a detailed explanation of the traffic issues in Jerusalem on the Sabbath, noting the conflict between the desire of the religious and Ultra-Orthodox communities to maintain an observant way of life and between the secular public’s freedom of movement. In the Controller’s view, closing Bar-Ilan Street for a four-month period constituted an attempt to find the proper balance between these conflicting considerations, in order to facilitate finding a more permanent solution.

27. On the basis of his testimony before us, and in the view of the petitions and the responses to them, the Court thought it best to resolve the matter by way of an agreement.  Such an agreement would quite naturally be premised on mutual patience and tolerance and on a long-term understanding regarding the future of Jerusalem. Rather then focusing solely on the issue of whether to close Bar-Ilan Street, it would relate to expected social dynamics and their effect on the secular-religious relations in the coming years. On the basis of such this agreement, it would be possible to find long-term solutions for the various problems that these petitions raised.

28. This lead to our proposal that a public committee be established, whose members would provide a balanced reflection of the spectrum of views and perspectives on secular-religious relations. The committee’s goal would be to strike a social covenant for secular-religious relations. The committee’s recommendations would be considered by the government agencies, which would assist them in determining policy in traffic matters, including the potential closure of Bar-Ilan Street.

 29.            The Court’s proposal was immediately submitted to the Minister of Transportation, who accepted it.  We were informed that the Minister intended to have the Committee set-up immediately so it could begin deliberations without delay.  The other sides also welcomed our proposal. Under the circumstances, we thought it appropriate to postpone the continuation of the hearing for two months, in order to allow the committee to function.

30. In view of this development, the state and the petitioners in HCJ 5434/96 petitioned the Court to strike down the interim order.  Petitioners in HCJ 5016/96, 5025/96 and 5090/96 opposed this motion. We held, with Justice Tal dissenting, that there was no reason to revoke the interim order at that stage. It was our understanding, given the response of the National Traffic Controller and, on the basis of accepted guidelines regarding interim orders, that the interim order should remain valid.  We further noted that the petitions were still pending and that, as long as we lacked exact and verified data regarding an appropriate solution, there were no grounds for changing the status quo that had existed on Bar-Ilan Street prior to the Controller’s decision.  This having been said, we noted that there was nothing to prevent the Controller or one of the other litigants, subsequent to the establishment of the committee, from approaching us at his or her own initiative with a request to strike down or alter the interim order, on the basis of developments in the committee.

31. The Court emphasized its hope that a public committee that would make recommendations, which would be submitted with appropriate haste and which would reflect the social consensus of all walks of Israeli society, would facilitate an eventual solution to the critical problem of religious-secular relations both in Jerusalem and outside of it, based on mutual tolerance. We also expressed our concern that the committee be allowed to do its work in a quiet atmosphere, free from threats or violence.  As noted above, the Controller or any of the litigants would be able to return to us in the future with a request to strike down or alter the interim order.

32. In his dissent, Justice Tal opined that the interim order should be cancelled. In his view, the National Traffic Controller’s decision was temporary, and was intended to allow for assessment of the proposed arrangement. Upon termination of the trial period it would be possible to ascertain whether the proposed arrangement had been an appropriate and reasonable alternative. Justice Tal noted that he saw no reason for this Court to prevent the authority from conducting this experiment. The results of the experiment could also be weighed by the public committee.

The Tzameret Committee

In the wake of our proposal, on August 27, 1996 the Minister of Transportation appointed a public committee charged with making recommendations regarding motor traffic on the Sabbath. The committee was chaired by Dr. T. Tzameret. Its members were Prof. G. Golan, Rabbi T. Weinmann, Mr. U. Chason, Rabbi S. Yakobovitz, Rabbi She'ar Yashuv Cohen, Prof. E. Shweid, Prof. D. Shferber. In its letters of appointment, the Committee was requested to establish

recommendations regarding traffic on the Sabbath on Bar-Ilan Street in Jerusalem, in Jerusalem in general, and its environs. The recommendations are to reflect a social consensus between various segments of the population. This consensus is to be based on patience, tolerance and on a long-term understanding of the population structure of Jerusalem and its environs.

34. The Tzameret Committee deliberated for approximately nine weeks. It heard the testimony of dozens of witnesses, including public servants, experts in geography, economics, urban planning, sociology, political science and public administration, politicians, public figures and ordinary citizens. The Committee also studied the written requests of citizens not summoned to testify before it.

35. The Committee’s recommendations address four matters: the creation of a “social covenant” between the religious and the secular, the economic, demographic, cultural and social development of Jerusalem, the regulation of the street closures nationwide on the Sabbath and holidays, and the closure of Bar-Ilan Street on the Sabbath and holidays.

Regarding the social covenant, seven of the eight Committee members recommended that a council, consisting of twenty-three public figures and spiritual leaders from all walks of life, be established to engage in an ongoing dialogue on religious-secular relations. “All of this with a view to the gradual improvement of religious-secular relations based on mutual respect, understanding and agreement.”

With respect to Jerusalem’s development, seven of the eight Committee members recommended intensifying research regarding Jerusalem, its development and its population, in order to collect data which could serve as a basis for formulating policy. Likewise, the seven members also suggested the restriction of subsidized building in Jerusalem, the building of additional public structures and the planning of new suburbs, with an eye to the lifestyles, character, and needs of the various sectors of the population. The Committee unanimously recommended extending the municipal boundaries of Jerusalem to the west and south, so that suburbs such as Mevasseret Tzion, Motza Elit, Ramat Rachel, Mt. Eitan and the Arazim valley would be included within Jerusalem.  The Committee further recommended encouraging economic, public and spiritual activities within the Jerusalem area. In addition, six of the Committee members proposed “the promotion of cultural activity geared towards various populations, provided that such activities do not involve the public desecration of the Sabbath.” One of the members opposed this recommendation and another abstained.

 36.            As for the matter of closing roads nationwide, the Committee recommended that Israeli roads be classified into six categories:

                    (1)Local streets—streets used exclusively for access to adjacent land and not for thorough traffic;

                    (2)Internal Thorough Streets—streets, mainly serving the needs of local residents, which concentrate and divert traffic from internal streets to collector or arterial thoroughfares;

                    (3)Main Thorough Streets—streets which concentrate traffic from internal thorough streets to main traffic arteries;

                    (4)Arterial Thoroughfare (with direct access to adjacent lands)—streets, used for transit between various neighborhoods, which concentrate traffic from the categories listed above;

                    (5)Arterial Thoroughfare (without direct access to adjacent land users)—street, which are used for through traffic only, which concentrate traffic from the thoroughfares listed above;

                    (6)Intercity Highway.

The Committee recommended that the Municipal Authority, in its capacity as the Traffic Authority, be exclusively authorized to deliberate and decide whether a Main Thorough Street or an Arterial Thoroughfare (with direct access to adjacent land users), should be closed. Such requests would be considered if a large majority of the adult population (75% - 80%) in the area through which the street passes requested such a closure, and if reasonable alternate routes could be found. The Committee further suggested that any decision of the Municipal Authority to close a street should be submitted to the Central Authority, who would examine the decision based on professional considerations. The Committee recommended that only the Central Authority be authorized to close Arterial Thoroughfares (without direct access to adjacent land users) and Intercity Highways, and only then under exceptional circumstances. Moreover, the Committee proposed that an appeals board be established in order to adjudicate objections raised against the Central Authority’s decisions.

37. With respect to Bar-Ilan Street’s closure, five of the Committee members recommended that “in consideration of the needs of the Ultra-Orthodox population, we recommend adopting the Sturm Committee’s decision to close Bar-Ilan Street on the Sabbath and festivals during prayer times, provided that arrangements are made for the secular public in accordance with its needs within the framework of the current status quo.” In a personal letter, which forms part of the report, the Committee’s Chairman noted that the recommendation that the road be closed during prayer times is a conditional one—the condition being that “there be an organized transportation alternative on the Sabbaths in Jerusalem, an arrangement that had existed in Jerusalem for many years.”  Two additional Committee members (Prof. Shweid and Prof. Golan) clarified that they agreed to closing the road with the understanding that transportation arrangements for the secular public would be based on the status quo, under which taxis had been permitted to operate. Prof. Shweber expressed reservations regarding these understandings, and emphasized that his intention was not to permit public transportation on the Sabbath, but rather to continue allowing private transportation. Rabbi Shear Yashuv Cohen, who refrained from voting, claimed that the reference to the status quo was intended to prevent deterioration in the position of the secular population rather than permit the desecration of the Sabbath.

The Decision of the Minister of Transportation

38. The recommendations of the Tzameret Committee were submitted to the Minister of Transportation.  In accordance with section 42 of the Basic Law: The Government, the Minister decided to assume the authority of the Traffic Controller in the matter of Bar-Ilan Street.  On November 7, 1996, the Minister submitted an affidavit to this Court, detailing his stance.

 39. The Minister of Transportation adopted the Tzameret Committee’s recommendations regarding the establishment of a public council. This Council would be responsible for conflict resolution between different sectors of the Jewish population.  The Minister of Transportation brought this proposal to the Prime Minister and requested that he recommend to the President that such a council be established.

With respect to Jerusalem’s development, the Minister of Transportation stated that the committee's recommendations were not within his authority, but suggested to the Prime Minister that these recommendations be submitted to the Minister’s Committee for Jerusalem.

40. In the matter of closing roads nationwide, the Minister of Transportation decided that professionals employed by his Ministry would assess recommendations of this nature. If the professionals suggested that the recommendations be implemented, and if the Minister decided to adopt them, appropriate legislative amendments would be necessary.

41. Regarding Bar-Ilan Street, the Minister of Transportation felt that implementing the Tzameret Committee’s recommendations would essentially entail closing the road. This position took into account its classification as an Arterial Thoroughfare (with direct access to adjacent lands), the existence of reasonable alternatives, and the fact that an overwhelming majority of the population had expressed its desire that the road be closed.  The Minister also expressed his view regarding the condition on which the road closing was to be premised, namely “that arrangements are made for the secular public in accordance with its needs within the framework of the current status quo." The Minister regarded this condition as being “vague and lacking substantial factual basis.”  He noted the various interpretations given by different Committee members. Dr. Tzameret, Prof. Schweid and Prof. Golan felt that this paragraph referred to the implementation of public transportation on the Sabbath. Prof. Shwerber interpreted the paragraph as referring to the individual’s right to violate the Sabbath within the framework of the existing status quo. Consequently, the Minister concluded that the majority of the Committee did not suggest making the street closure contingent on the establishment of alternate transportation routes.

 Regarding the paragraph’s factual basis, the Minister noted that the three Committee members in question could not point to any agreements that would confirm their respective interpretations.  The Minister further noted that the Traffic Controller had informed him that, in the past, licenses had not been distributed for taxis to operate on Sabbaths and festivals.  From this he deduced that, in permitting organized transportation, he would be changing the status quo rather than continuing it. The Minister of Transportation concluded that he had not been presented with a recommendation that reflected a “a social consensus between the various segments of the public regarding Sabbath traffic.”

 The Minister of Transportation also consulted with the Traffic Controller. The Traffic Controller recommended that the Minister adopt the Tzameret Committee’s recommendation that Bar-Ilan Street be closed during prayer times, on the condition that Golda Meir Boulevard and the other entrances to the city remain open during the Sabbath and festivals, as well as that Jaffa Street be open to private vehicles. It was on the basis of these conditions that the Minister of Transport decided that Bar-Ilan Street would be closed to traffic on Sabbaths and festivals during prayer times, as per the Sturm Committee’s recommendations. Closing times would be for one hour and forty-five minutes after the beginning of the Sabbath, one hour and forty-five minutes prior to the end of the Sabbath and between 7.30 and 11.30 a.m. during the Sabbath day. In addition, the Minister of Transportation decided that, for as long as Bar-Ilan Street was closed, Golda Meir Boulevard and the entrances to Jerusalem would remain open. Similarly, the lanes on Jaffa Street normally reserved for public transportation would be opened to private vehicles.

The Continuation of the Hearing

42. Oral arguments resumed upon receipt of the Minister’s response.  The Minister of Transportation emphasized that his decision was not for a trial period, but reflected a final position. The Minister asserted that he had balanced the conflicting interests and decided that, in view of the serious harm to the interests of the Ultra-Orthodox sector on the one hand, and the existence of reasonable transportation alternatives on the other, it was reasonable to partially close Bar-Ilan Street to traffic on the Sabbath and on festivals. However, he noted, should there be any change in the circumstances, the Minister would obviously reconsider his decision. Moreover, the Minister asserted that his decision was influenced by the Sturm and Tzameret Committees’ recommendations and by the opinions of various rabbis, committees and other interested parties. In this context, it was stressed that there were over one hundred synagogues within the ten surrounding neighborhoods immediately adjacent to Bar-Ilan Street.  Indeed, local residents often crossed Bar-Ilan Street when going from one neighborhood to another, both for purposes of prayer and study. This having been said, the Minister was careful to stress that he had not been influenced by the violent demonstrations, though he contended that this violence was proof of the intensity of the feelings of the Ultra-Orthodox community. According to the Minister, violence must be dealt with by the police, and it would not lead him to change his mind. Needless to say, if one of the responsible bodies, such as the municipality or the police, were to approach him, he would be prepared to consult with them in that regard.

The Minister highlighted that he had not been approached by any secular residents who would be harmed by his decision. He reiterated that “so long as Bar-Ilan Street is closed, the adjacent roads … would remain open.”  Furthermore, he clarified that, in deciding these matters, the more important and central the road, the stricter and more exacting would be the standards for its closing.  In any event, the factors to be taken into account were the degree of harm to the feelings of the public, the balance between the various populations living adjacent to the road, and the nature of the alternatives available. In addition, the Minister notified the Court that the establishment of a public body that would function as an appeals board was presently under discussion.  Practically speaking, he asserted, such a body had functioned in the Bar-Ilan case.

The Committee of Tel-Arza and Bar-Ilan Street Neighborhoods reiterated its position that Bar-Ilan Street ought to be completely closed on Sabbaths and festivals. It asserted that that there were no more than fifty secular residents in the neighborhood, making Bar-Ilan Street a uniquely Ultra-Orthodox neighborhood. Similarly, the Association for the Rights of the Religious Community in Israel also asserted that Bar-Ilan Street ought to be absolutely closed to traffic on Sabbaths and festivals. 

43. For their part, petitioners in 5090, 5025, and 5016/96 repeated their position that Bar-Ilan Street’s closure is unreasonable. They emphasized the absence of criteria for closing streets to traffic and argued that a precedent would be set for closing additional arterial roads if the Court was to approve the Minister’s decision to close the Bar Ilan Street. They further emphasized that, in the past, the closure of Yehezkel Street had been justified by the fact that Bar-Ilan Street provided an alternative route. Now, however, there are requests to close Bar-Ilan Street, claiming that other roads can serve as alternatives. In the future, these roads would also be closed. In this context, it was argued that if the feelings of the Ultra-Orthodox warranted the closing of Bar-Ilan Street, why did respecting these feelings not also warrant the closing of alternative roads as well?  The petitioners emphasized that, while the secular petitioners were always ready to compromise, the Ultra-Orthodox were not prepared for any compromise, nor were they ready to renounce any of their past victories.  It was further emphasized that there were many secular citizens who refrained from using Bar-Ilan Street on the Sabbath, due to the Ultra-Orthodox violence on the street.

44. In response to these comments, my colleague, Justice Tal, inquired as to whether the petitioners were prepared for a compromise in which Bar-Ilan Street would be closed to traffic on the Sabbath, as per the Minister of Transportation’s decision and, in exchange, a street that is currently closed on Sabbath would be reopened. Justice Tal made particular reference to Yam Suf Street. The panel joined Justice Tal in this suggestion. The Minister informed us that he would conduct a hearing regarding the proposal with the representatives of the City of Jerusalem.

45. In his response, the Minister informed us that the compromise proposal had been seriously considered and that he had inquired with the Mayor of Jerusalem regarding the possibility of reopening Yam Suf Street to traffic on the Sabbath. After consulting with the representatives of the City Council and with the Director of the Traffic Section and Engineering Services, the Mayor of Jerusalem decided that it is appropriate to preserve the status quo on Yam Suf Street. He reasoned that there is no traffic-related connection between closing Bar-Ilan Street, as per the Sturm Committee’s recommendation, and reopening that particular segment of Yam Suf Street, which had already been closed to traffic on Sabbaths and holidays for a year and three months. Professionals working in the Transportation Ministry agree that there is no significant traffic-related connection between closing Bar-Ilan Street and reopening a segment of Yam Suf Street. The Minister of Transportation also agrees with this position. The Minister of Transportation noted that additional attempts had been made to find a solution acceptable to all sides, but that these efforts had been unsuccessful.

The General Normative Framework

46. Our point of departure is section 70(1) of the Traffic Ordinance [Revised Version], which confers upon the Minister of Transportation the authority to regulate traffic and establish rules regarding the use of the roads. With this authority, the Minister enacted Regulation 17 of the Traffic Regulations-1961:

17. (a) The Central Traffic Authority is permitted to direct the Local Traffic Authority regarding the determination of traffic arrangements, their alteration, termination, and maintenance.

(b)        Where instructions as stated in subsection (a) are given, and the Local Traffic Authority does not comply therewith, the Central Traffic Authority may set out such traffic arrangements, which shall be regarded as if though they had been established, indicated, activated or terminated by the Local Traffic Authority.

The “Central Traffic Authority” is the Traffic Controller or the body upon which the authority of the Controller is conferred. For our purposes, the Central Traffic Authority is the Minister of Transportation, in view of his use of section 42 of the Basic Law: The Government, by which he assumed the Traffic Controller’s authority with respect to Bar-Ilan Street.

47. Regulation 17 of the Traffic Regulations endows the Traffic Controller with the administrative authority to direct the manner in which traffic arrangements are to be set up.  This authority, like any administrative power, must be exercised in accordance with the rules of administrative discretion and procedure.  The rules of administrative discretion, for their part, deal with the factors that the administrative authorities are permitted to take into account and any balancing between them. The rules of administrative procedure determine the methods through which administrative discretion is to be exercised. See 2 I. Zamir, The Administrative Authority [91], at 673. These two sets of rules were developed by the High Court of Justice and are based on the fundamental principles of our legal system. They have been entrenched in our Basic Laws. In accordance with the theory of administrative discretion, the administrative authority is only permitted to take relevant considerations into account. Furthermore, the administrative authority must find the appropriate balance between these relevant considerations. The balance must be reasonable, as must the decision. The exercise of administrative discretion must be based on a principled, fair and systematic examination of the factual foundation underlying the matter in question.  Were the requirements of these two sets of rules satisfied in the case at bar?    

Laws of Administrative Discretion—Relevance

48. According to our administrative law, an administrative authority is only permitted to consider relevant considerations.  Irrelevant or foreign considerations are proscribed. See HCJ 953/87 Poraz v. Mayor of Tel-Aviv/Jaffa Mayor [4], at 324. In the case at bar, the Minister of Transportation considered the affront to the religious sensibilities and observant way of life of the Ultra-Orthodox population living around Bar-Ilan Street. Is this a relevant or a foreign consideration? The question of whether religious considerations and offense to religious sensibilities may be taken into account has been discussed at length in our case law. See 1 A. Rubinstein, The Constitutional Law of the State of Israel 214 (1997) [92]. Sometimes, the answer was in the affirmative and, at other times, it was in the negative. See HCJ 105/54 Lazerovitz v. Food Products Comproller, Jerusalem [5].

Clearly, the determining factor is the language of the law conferring the authority, and the purpose for which the authority is conferred. As a general interpretative guideline, subject to specific legislative provision, it may be said that considerations that take religious sensibilities into account are precluded if religious coercion is the final goal of such considerations. In contrast, religious sensibilities may be taken into account if they are intended to give expression to religious needs. See HCJ 3972/93 Meatrael Ltd v. Prime Minister [6], at 507.  Indeed, religious coercion is said to run contrary to the right to freedom of religion and human dignity. Consideration of religious needs is, however, consistent with freedom of religion and human dignity. Thus, for example, when exercising discretionary powers to institute daylight savings time, it is permitted to take religious needs into account. I discussed this point in HCJ 217/8 Segel v. Minister of the Interior [7], at 439:

Changing the clock touches on and affects the lifestyle of the Israeli population. As such, even times of prayer and the observance of religious commandments are relevant matters. Just as the Minister of the Interior is permitted to take the industrial and agricultural needs of farmers, adults, and youth into account, he is also permitted to consider the interests of the religious and secular populations.

Similarly, in the exercise of discretion to prohibit the performance of a play, the fact that the performance offends the audience’s religious sensibilities may be considered. This was indeed the ruling in HCJ 351/72 Keinan v. Film and Play Review Board for Films [8], at 814, as per Justice Landau:

According to the law of the State of Israel, even a playwright is not exempt from the duty not to grossly offend his fellow’s religious sensibilities. This obligation is a direct product of the duty of mutual tolerance between free citizens with differing views, without which a pluralistic society such as ours could not function. This principle is important to the extent that it can prevail over the basic right of freedom of expression.

In another case, dealing with the Review Board’s authority to prohibit the screening of a film that offended the religious sensibilities of the public, HCJ 806/88 Universal City Studio Inc. v. Film and Play Censorship Board [9], at 37, I wrote:

In a long line of cases, this Court has recognized offense against another's feelings—such as feelings of religion or mourning—as justifying the exercise of the authority of the Review Board for the purpose of restricting the freedom of expression. The public’s feelings are values which the Film and Play Review Board, acting in its capacity to censor films, must take into account. An infringement on such feelings may justify limiting the freedom of expression.

One case, HCJ230/73 S.T.M. v. Mayor of Jerusalem—Mr. Teddy Kollek [10], at 121, discussed whether an administrative authority was entitled to refuse to issue a license that was required by the Licensing of Businesses Law-1968. The reason offered for the refusal was that opening the business in question would offend the local residents’ sensibilities. The Court upheld the refusal to grant the license. Justice Y. Cohen considered injury to the public’s religious feelings as a consideration relating to “public security,” and, as such, to be legitimate:

Even in its narrow sense, this provision justifies the refusal to issue a license for a business, which, by its very nature, offends the feelings of the residents of the area in which the business is to be opened. As such, there is a real danger of a concrete violation of the public peace. If, for example, someone requested to open a night club in the heart of Mea Shearim, or a pub in the center of a religious Muslim neighborhood, the Licensing Authority would be justified in refusing to issue a license.

In yet another case, the Court held that religious feelings may be taken into account when authority is exercised to limit the freedom of worship. See HCJ 7128/96 The Temple Mount Faithful v. Government of Israel [11].  That matter was succinctly summarized by Justice Berenson:

Consideration of religious feelings, close to the hearts of numerous segments of the population, is not an invalid consideration per se, provided that the use of the statutory authority is not a guise for attaining a purely religious objective.  Where it is possible to pursue a course of action in one of two ways—either by ignoring religious considerations, or by taking them into account without imposing a large burden the public—the second route is preferable. In HCJ 98/54, a directive issued by the Food Controller was struck down by reason of it being an attempt—motivated by exclusively religious considerations—to prevent pig farming in Israel, under the guise of food control. This having been said, in the same ruling, it was explained that the directive would not have been defective had the Controller taken into account religious needs in a manner incidental to his authority to regulate food consumption. “Quite the opposite, there would have conceivably been a serious problem in his behavior had he ignored these considerations.” Crim. A 217/58 Izramax Ltd. v. The State of Israel [11], at 362.

Our conclusion is that the consideration of religious feelings, if this does not amount to religious coercion, is deemed to be a legitimate exercise of administrative authority. HCJ 612/81 Shabbo v. Minister of Finance [13], at 301. Taking into account religious considerations may form part of a statute’s general goal. Obviously, aside from this general goal, there may be a more specific goal, under which religious considerations are deemed illegitimate. See HCJ 953/87 supra. [4]. This approach was reinforced by the adoption of the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation.  Both of these Basic Laws stipulate that their purpose is “to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.” See section 1 of the Basic Law: Human Dignity and Liberty and section 2 of the Basic Law: Freedom of Occupation. Consideration of religious feelings was recognized in the past as being commensurate with the values of the State of Israel as a democratic state. The validity of this consideration is now further reinforced by the values of the State of Israel as a Jewish state. Indeed, the Jewish and democratic values of the state are inseparable, as both are endowed with constitutional status. Both serve as tools for the legislative interpretation of laws. See Crim. FH 2316/95 Ganimat v. The State of Israel [14]. Thus, on the interpretative level, every effort must be made to ensure the synthesis and accommodation of these two aspects. See CA 506/88 Yael Shefer  v. The State of Israel [15].    

The Law of Administrative Discretion: Balancing and Reasonableness

49. As we have seen, provided no religious coercion is involved, offense against the religious feelings and lifestyle of an individual or group is a relevant factor in the exercise of administrative authority.  Nonetheless, it cannot be forgotten that considering the religious feelings of a particular individuals is liable to violate the rights and feelings of another person. Thus, whether religious sensibilities are offended is a factor that cannot be considered in isolation. Rather, this must invariably be weighed against other factors, related to both the individual and the public at large. A reasonable balance must be struck between the conflicting considerations. If the balance is appropriate, it leads to the conclusion that the decision is reasonable. See HCJ Ganor v. The Attorney-General, at 513-14 [16]. Indeed, a decision’s reasonableness is assessed by balancing between competing values, according to their respective weight.  This is the balancing doctrine as practiced in our public law. It is employed where an authority considers conflicting values and interests. It has been practiced by this Court in most instances where the exercise of discretionary power infringes the rights of either the individual or society.

 Even so, there are some interests against which there can be no balancing. For example, when the State of Israel’s very existence was placed on the scales, this Court refused to weigh between that interest and competing interests. IA 1/65 Yardor v. Chairman of Central Elections Committee [17]. Indeed, the Court regarded preserving the State of Israel’s existence as a “constitutional given” not to be weighed against the right to elect and be elected.  Nonetheless, this case was clearly exceptional and was even the subject of criticism. See IA 2/84 Neiman v. Chairman of the Central Elections Committee [18], at 304. Thus, this Court refused to extend the scope of this exception to cases other than those involving preserving the democratic nature of the state. Neiman [18]. I am prepared to assume, without ruling on the matter, that there are other values or interests to which the balancing doctrine is not applicable. This having been said, the accepted approach in our public law is the following: where a conflict arises between an individual right and a public right, the Court balances between the two. See Neiman [18], at 308; CA 294/91 Jerusalem Burial Society v. Kastenbaum [19], at 521; CA 105/92 Re’em Engineers v. Municipality of Nazareth-Illith [20], at 207. This case involves balancing between conflicting interests and values. This is a process of “placing competing values on the scale and, having weighed them, deciding which value is to be preferred. See HCJ 73/53 Kol Ha’Am Company v. Minister of the Interior [21], at 879. This was the Court’s approach regarding the conflict between freedom of expression and preserving public peace, HCJ 153/83 Levy v. Southern District Police Commander [22], in the clash between freedom of movement and public security, HCJ 448/85 Dahar v. Minister of the Interior [23], and in the clash between other conflicting values and interests that constitute fundamental values of our legal system. See 2 A. Barak, Interpretation in Law 679 (1993) [93]. Indeed, our constitutional jurisprudential theory is not based on an “all or nothing” approach but rather on a “give and take” approach, involving balancing between different values. HCJ 148/79 Saar v. Minister of the Interior [24], at 178. As I stated in CA 105/92 supra. [20], at  205:  

A social value, such as freedom of expression, does not have "absolute weight." The weight of any social principle is relative. The status of any fundamental principle is always assessed in relation to that of other principles with which it is likely to conflict.

50. This Court adopted a similar approach with regard to the balance between religious feelings and the freedom of expression, see HCJ 351/72 supra. [8]; HCJ 806/88 supra. [9]. It also adopted this approach with regard to the relationship between religious sensibilities related to the observance of the Sabbath and a specific public interest—for example, the regular supply of petrol.  In that latter instance, the Court stated that a solution must be found which “on the one hand, would not ignore the religious sensibilities, sacred to the local residents and, at the same time, which would guarantee the supply of vital services to the public.” Crim. A 217/68 supra. [12], at 364. This Court adopted a similar approach regarding the relationship between religious feelings and the freedom of occupation.  In this context, my colleague Justice Cheshin wrote in Meatrael [6], at 507:

The considerations of man, qua man, are most legitimate. Such is the nature of democracy, in which the individual’s welfare and ability to flourish are of paramount importance. Where various segments of the population battle each other and the interests at stake are intertwined, the matter of setting priorities is self-evident. Weighing the interests inevitably leads to the need to decide between values, each pulling in its own direction. In balancing these interests we shall find it possible—and indeed our duty—to consider individual interests, or those of different sectors of the population, provided that we do not coerce the other into observing religious commandments. Religious commandments, qua religious commandments, shall not be imposed upon those who are not observant of them.

It therefore follows that religious feelings are a public interest to be taken into account. Nonetheless, their weight is not “absolute.” Instead, they must be balanced “horizontally” against other values that also constitute a public interest and balanced “vertically” against other human rights. As Justice Zamir explained, in HCJ 7128/96 supra. [11], at 521:

Religious feelings are not extended absolute protection. There is no law that provides absolute protection to any right or value. All rights and values, be they what they may, are relative. Necessarily, the protection they are allotted is also relative. This equally applies to the protection extended to religious feelings.  

Furthermore, just as consideration of religious sensibilities is not an “absolute,” but rather “relative,” value that must be balanced against other rights, values and interests, so too, the right to freedom of movement is not “absolute.” It too must be balanced against other rights, values and interests. It is common knowledge that there are roads and streets closed to traffic, either partially or totally. Roads are replete with road-signs and symbols that regulate the flow of traffic on the roads and streets. Thus, freedom of movement is a relative right and the law does not protect its full scope. Compare HCJ399/85 Kahane v. The Broadcasting Authority [25], at 283; HCJ 806/88 supra [9], at 33. In fact, the vast majority of human rights are relative, and may be infringed in order to realize interests which society considers worthy. See HCJ 153/87 Shakdiel v. Minister of Religious Affairs [26]; HCJ 2481/93 Dayan v. Jerusalem District Commander [27], at 473. The reason for this is that human rights in general, and the right to freedom of movement in particular, are not the rights of an isolated individual, living on a desert island. Instead, they are the rights of individuals living in society. They deal with the individual in his relationships with others, and presume the existence of a state that must realize social and national goals. Hence, every democratic society, sensitive to human rights, recognizes the need to restrict them in order to preserve its capacity to protect human rights.  For both human rights and the restrictions imposed on them stem from the same source, and reflect the same values. Even so, there are restrictions on the extent to which human rights may be limited. These limitations are based on the need to protect human rights. See CA 6821/93 United Mizrahi Bank v. Migdal [28], at 444.

51. The balancing of conflicting interests and values, including values related to religious feelings and religious lifestyle, ought to be principled, or definitional.  The balancing ought to be based on a generalization that also allows for the resolution of future cases. In the balancing process a “rational principle” ought to be formulated. HCJ 73/53, supra. [21], at 881 (Agranat, P.). The balancing must reflect a “substantive criteria, which is neither paternalistic nor accidental, the nature or direction of which cannot be assessed." See FH 9/77 Israel Electric Company v. “Ha’Aretz” Newspaper Publications [29], at 361. (Shamgar, J.) 

52. As the balancing between conflicting values and interests is not conducted with scientific tools, the weight that must attach to the various interests and values is, by definition, not exact.  Thus, there are certain situations where there are different ways of balancing between the conflicting interests and values, and there is more than one reasonable decision.  A “zone of reasonableness” is created, within which a number of different decisions will be considered reasonable. See HCJ 389/80 Dapei Zahav v. Broadcasting Authority [30]; HCJ Lugassy v. Minister of Communications [31], at 454; HCJ 341/80 Moshav Beit Oved v. Traffic Controller [32], at 354; HCJ 910/86 Ressler v. Minister of Defense [33]. Any alternative within the “zone of reasonableness” is considered reasonable. In such situations, the choice between the various alternatives will be made by the relevant authority.  It is endowed with the authority to select the alternative that appears appropriate, from among the different alternatives. As I mentioned in HCJ 953/89 Indoor  v. Mayor of Jerusalem [34], at 694:

Applying the general normative criterion “near certainty of serious injury” to the circumstances of a concrete case may, quite naturally, give rise to difficult cases.  One mayor may decide that there is near certainty of serious injury. Another mayor, using the same criterion, may decide the injury is not serious or that possibility of its occurrence does not reach “near certainty.” There may be a variety of possibilities, all included within the parameters of reasonableness, which reflect the legal exercise of the said criterion. The choice between these alternatives will be made by the competent authority—not the Court.

And so, when the authority in question is the legislature—the Knesset—the choice between alternatives found within the “parameter of reasonableness” is left to the legislature’s discretion. The choice is in the legislature’s hands and not the Court’s. Similarly, when the authority in question is the executive branch, the choice between the alternatives within the parameters of reasonableness rests with the executive, not the Court. This conclusion is derived from the principle of separation of powers. Indeed, while the Court is responsible for maintaining this separation, it is not charged with selecting the particular legal alternative within the "zone of reasonableness." In consequence, it does not ask itself which of the legal alternatives it would have chosen had it been empowered to do so. To the extent that each of the alternatives is legal, it is irrelevant that the Court may have chosen a different alternative were it vested with the requisite authority. Ressler [33], at 506. A decision made by the executive branch may be declared illegal if it falls outside the zone of reasonableness.  Every decision within the zone, however, is legal and the Court will not strike it down. The area of this zone is to be determined by the Court.   

53. “Balance” is a metaphorical concept.  When a judge balances between conflicting values, he operates on the normative level. The concept of “balancing” is premised on the notion that:

not all principles are of identical significance in society’s eyes. Thus, in the absence of legislative direction, the Court must assess the relative social importance of the different values. Just as there is no person without a shadow, so too, there is no principle without weight. Balance on the basis of weight necessarily implies a social assessment of the relative importance of the different principles.

HCJ 14/86 Laor v. The Film and Play Review Board [35], at 434. Hence, “weight” attaches to social norms, reflecting their relative social importance. The “weighing” process is a normative act, intended to endow the various data with a place within the legal system and establish their social value, within the overall fabric of social values.” HCJ 6163/92 Eizenberg v. Minister of Construction and Housing [36]. To this end, Justice Shamgar was correct, in FH 9/77 supra. [29], at 361, in pointing out that:

The process of placing competing values on the balancing scales describes the interpretative starting point, but does not establish criterion or value weights to assist in performing the interpretative task.

It follows that a standard for balancing between the need to preserve freedom of movement and the need to protect religious sensibilities must be found. 

The Balancing Standard

54. In the wake of the adoption of the Basic Laws regarding human rights, the accepted criteria for balancing is the standard stipulated in the limitation clause of sec.8 of the Basic Law: Human Dignity and Liberty:

There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose and to an extent no greater than that is required.

For our purposes, the relevant question is whether the order issued by the Traffic Controller, by virtue of which Bar-Ilan Street was partially closed to traffic on Sabbath eve and day, is commensurate with the values of the State of Israel, whether it was enacted for a proper purpose and whether the infringement of the freedom of movement does not exceed that which is required. We are permitted to employ this standard even though the order in question was issued under the authority of the Traffic Ordinance [Revised Version]-1961, which is protected by the rule upholding the validity of laws in effect prior to the adoption of the Basic Law. See Basic Law: Human Dignity and Liberty, § 10.  Even so, all statutes must be interpreted in the spirit of the Basic Law, as I noted in FH Cr. 2316/95 supra. [14], at 653:

The Basic Law’s constitutional status is projected on all areas of Israeli law. It does not overlook existing legislation, which is also a part of the law of the State of Israel. The constitutional aura projected by the Basic Law influences all areas of the Israeli Law, necessarily affecting the old law as well. Admittedly, the validity of existing law is retained, as the Basic Law’s aura is projected less intensely on these, as compared to the new law. Thus, while the latter may be struck down if it contradicts a provision of the Basic Law, it cannot be invalidated.  However, while the old law is constitutionally protected from being struck down, it is nonetheless not immune from being interpreted anew. There is no distinction between old and new law with respect to the interpretative influence of the Basic Law. Any administrative discretion conferred by existing law must be exercised in the spirit of the Basic Law.

Justice Dorner elucidated this point, in HCJ 4541/94 Miller v. Minister of Defense [37], at 138, regarding the interpretation of administrative authority: 

The limitation clause applies exclusively to powers grounded in laws adopted subsequent to the Basic Law’s enactment.  However, by implication, it is appropriate to also apply its principles to the authorities’ duties by virtue of section 11 of the Basic Law, which also applies to powers anchored in pre-existing laws.

Ever since the Knesset enacted the Basic Laws, the interpretation of legislation does not depend on whether the relevant legislation precedes or antecedes the Basic Laws. Likewise, whether the violation relates to rights “covered” by the two Basic Laws or not is equally irrelevant.  A natural connection exists between the constitutional limitation clause and all public law, including human rights not literally “covered” by the Basic Laws.  This is because it has always been our position that legislation includes both general and specific purposes. See HCJ 953/87 supra. [4]; HCJ 693/91 Efrat v. Population Registrar [38]. The general purposes are the values of the State of Israel as a Jewish and democratic state; the specific purposes refer to the specific “proper purpose” specified by the limitation clause. The principle of proportionality, as provided for in the Basic Law, is another expression of the reasonableness standard according to which we generally interpret any piece of legislation. Even previous law must—and has always been—interpreted by the standards of the limitation clause.

We shall now consider the general principles mentioned in the limitation clause. We will then proceed to examine their practical application to the order to partially close Bar-Ilan Street, issued by the Minister of Transportation in his capacity as Traffic Controller.

The Values of the State of Israel

55. The values of the State of Israel are its values as a “Jewish and democratic state.” See the Basic Law: Human Dignity and Liberty, §1.  It appears beyond dispute that consideration of religious sensibilities is commensurate with the values of the State of Israel as a Jewish state.   Indeed, a Jewish state is sensitive to the religious feelings of every one of its citizens. This is true, a fortiori, when these feelings are connected to the Sabbath itself. Sabbath observance is a central value in Judaism. The fourth of the Ten Commandments, the Sabbath constitutes an original and significant Jewish contribution to the culture of mankind. See 31 The Jewish Encyclopedia, [107], under The Sabbath, at 422.  It is a cornerstone of the Jewish tradition and a symbol, an expression of the Jewish message and the character of the Jewish people. Deprive Judaism of the Sabbath, and you have deprived it of its soul, for the Sabbath comprises the very essence of the Judaism’s nature. Over the generations, throughout its blood-soaked history, our nation has sacrificed many of its children in the name of the Sabbath.

56. Is it consistent with democratic values to restrict human rights for the purpose of protecting religious feelings?

The answer to this question is quite complex. Taking into account human feelings, including religious feelings, as grounds for restricting human rights is particularly problematic under the democratic conception See R. Cohen-Almagor, Limitations of Tolerance and Freedom—Liberal Theory and the Struggle Against Kahanism (1994). In HCJ 230/73 supra. [10], at 119, Justice Etzioni correctly referred to this matter as “a minefield,” emphasizing that:

The concept of “public feelings” has broad connotations and the subject itself is particularly sensitive.

Thus, democracy finds itself in a dilemma when broaching the issue of whether the desire to protect human feelings can justify infringing on human rights. Indeed, democratic considerations seem to pull in opposite directions. On the one hand, protecting human feelings is natural to the democratic system, for society exists in order to give expression to these. This is the principle of tolerance, a basic tenet of democratic theory, vital to a pluralistic democracy. It therefore “constitutes a social objective in its own right, its realization incumbent upon any democratic society." CA 294/91 [19]. I dwelt on this point in CA 105/92 supra. [20], at 211, stating:

Tolerance is a central value in the public order. A democratic society seeking to fully maximize the wants of each individual will end up unable to satisfy even the minority of those aspirations. Ordered communal life is naturally premised on mutual forbearance and mutual tolerance.

In HCJ 257/89 Hoffman v. Appointee over the Western Wall [39], at 354, President Shamgar adopted a similar view, holding:

The sons and daughters of a free society, in which human dignity is a hallowed value, are all called upon to respect the individual’s personal religious feelings and his human dignity. This must be based on tolerance and the understanding that personal religious feelings and their expression vary from one individual to another.

An enlightened society also respects the beliefs and views of those who devotedly and passionately identify with what may not necessarily be the opinions shared by the average citizen. In that sense, understanding the other is more important than self-understanding. Thus, although the imperative “know thyself,” which is borrowed from a cultural tradition not our own, merits respect, it cannot replace tolerance, as expressed in Hillel's famous maxim in the Talmud: “Do not unto the other that which is hateful unto you." Tolerance is not a mere slogan for the appropriation of rights, but rather a criterion for recognizing the rights of others.

In HCJ 806/88 supra. [9], at 30, President Shamgar, addressing the tension between freedom of expression and offense against the listener’s feelings, wrote:

Tolerance must not give license to offend the religious sensibilities of the other.  It can even be said that a serious violation of religious feelings is the antithesis of tolerance, for the tolerance is intended to nurture and promote freedom of expression, rather than to violate and suppress religious feelings. Mutual tolerance between people with different values and beliefs is a basic cornerstone on which a free democratic society is premised.

Indeed, a democratic society is one which takes into account each and every individual’s feelings. Democratic values give expression to “an individual’s personal-emotional feelings and human dignity." CA 294/91 supra. [19], at 481 (Shamgar, P.). Furthermore, a democratic society is prepared to recognize that rights—such as freedom of expression or worship—must be restricted when allowing them to be fully realized would harm human life or physical integrity. Thus, for instance, we recognize the possibility of limiting the freedom to protest if it is nearly certain that allowing the demonstration to occur threatens physical harm, either to participants or to bystanders. See HCJ 153/83 supra. [22]. A democratic society, which is prepared to restrict rights in order to prevent physical injury, must be equally sensitive to the potential need for restricting rights in order to prevent emotional harm, which, at times, may be even more severe than physical injury. A democratic society seeking to protect life, physical integrity and property, must also strive to protect feelings.

57.  On the other hand, a democratic system prioritizes human rights above all else. Democracy is not merely formal democracy—the “rule book conception,” according to which decisions are left to majority will. Rather, democracy is substantive—the “rights conception," according to which the majority is precluded from infringing on human rights. See R.M. Dworkin, A Matter of Principle 11 (1985) [104]. Thus, substantive democracy’s need to protect and preserve human rights gives rise to a familiar dilemma, namely, whether it is at all possible to infringe on human rights in order to consider human feelings, themselves being harmed by the exercise of particular human rights. Indeed, the exercise of a right, by its very nature, risks offending another’s feelings. However, recognizing offensiveness as grounds for restricting human rights may pave the way for undermining human rights entirely. Consequently, a democratic society must be most careful in recognizing the legitimacy of infringing on human rights for the purpose of protecting feelings. I noted this in, HCJ 953/89 supra, [34], at 690, a case dealing with the possibility of restricting freedom of expression in order to protect the feelings of a segment of the population:

If we were to restrict freedom of expression each time that feelings were hurt, freedom of expression would eventually disappear. Expression, by its very nature, risks offending. This being the case, if every offended feeling were to justify infringing on freedom of expression, in the end the latter would lose all meaning.

Clearly, communal life in a democratic society, by its very nature, requires some openness to offense in order to realize human rights.  The principle of tolerance, by virtue of which consideration for feelings arises, itself gives rise to the requirement that one whose feelings are offended be tolerant. “This is the other side of mutual tolerance, necessary in a pluralistic society." HCJ 549/75 Noah Films v. The Film and Play Review Board at 764 [40] (Vitkon, J.). Indeed, "[t]olerance and patience are not one-way norms, but broad, multi-dimensional imperatives…” Hoffman [39], at 364 (Shamgar, P.). I insisted on this point, with regard to freedom of expression and offensiveness, in HCJ 806/88 supra. [9], at 38, noting:

A democratic society, by virtue of its very nature and substance, is premised on tolerance for differing opinions. A pluralistic, tolerant society is the singular force permitting communal life and co-existence. Hence, each and every member of society accepts the "risk" of their feelings being somewhat offended as a result of the free exchange of ideas. In effect, a society based on social pluralism must allow for the free exchange of ideas even if this risks offending those who may not agree with certain views. The regime’s very foundation, as a democratic regime, requires a certain exposure to the risk that some members of the public may be offended. 

As to the exercise of freedom of expression which infringes upon religious sensibilities, I stated, in HCJ 806/88 supra. [9], at 39:

It is only natural that religious conceptions are intrinsically related to individual consciousness. Indeed, feelings are liable to be hurt since a contradictory religious world-view is not merely an intellectual position with which one happens to disagree. Thus, the atheist is likely to offend the believer. Proponents of opposing religious views are likely to offend one another. This is a fact of life that a democratic society must accept. It is particularly differences of this nature that unite us around what we have in common. As this the only way that proponents of differing religious views can co-exist, suppressing the offensive is not the solution… Nor is suppressing all opposing views the solution. Doing so would only serve to stifle the human spirit.

And so, in a democratic and pluralistic society such as our own, there is no choice but to “absorb” offensiveness. In a democratic society, endeavoring to foster tolerance, there is no substitute for tolerance, even in the face of that which offends, as a means for preserving human rights. "The regime’s very substance, as a democratic regime, requires a certain exposure to the risk that some members of the public may be offended.” HCJ 806/88 supra. [9], at 38. This is the law regarding offensiveness in general, and regarding religious feelings in particular.

58. How can a democratic society escape this dilemma? How do we resolve the complications flowing from the fact that tolerance, which underlies the democratic conception, simultaneously justifies both protecting rights and infringing them? It appears to me that the answer lies in our duty to recognize a certain “threshold of tolerance” regarding hurt feelings, which every member of a democratic society accepts as part of the social contract upon which democracy is predicated.  This being the case, only when an offense exceeds this “threshold of tolerance” will restricting human rights in a democratic society be justified. As I noted in HCJ 953/89 supra. [34], at 690:

A democratic society, striving to protect both freedom of expression and the public’s feelings, must establish a "threshold of tolerance." Only offense that exceeds this threshold can justify infringing the freedom of expression.

This case dealt with the relationship between freedom of expression and offense to the public’s feelings. A similar approach should be adopted with respect to infringements of other human rights. Clearly, the “threshold of tolerance” is not uniform, but rather a function of the right and infringement in question, as Justice Zamir stated in HCJ 7128/96 supra. [11], at 521:

The threshold of tolerance for feelings, is neither set nor identical in every situation. The threshold depends, inter alia, on the identity of the conflicting right. For instance, the threshold may vary depending on whether the right in question is a basic right, such as freedom of expression, or a material, financial interest. Thus, while the threshold can be quite high if protecting feelings requires infringing the freedom of expression, it may be lower regarding infringements on property. In effect, the threshold shall be set in accordance with the balance between clashing interests in the circumstances, reflecting the relative weight, that is to say the social importance, of the interests in question.

And so, it is possible to infringe human rights for the purpose of protecting feelings—particularly religious feelings and lifestyle—in a society with democratic values, provided that the harm exceeds the threshold of tolerance accepted in that society. Quite naturally, the “threshold of tolerance” varies from one democratic society to the next. This being the case, while it is possible to learn from the experiences of other democracies, the utility of such comparisons is rather limited. Thus, for instance, the stricter the separation between religion and state under a given system, and the more that the rights are set out in more “absolute” terms, the more likely that such a system will prefer human rights to human feelings. Conversely, the more permeable the boundaries between religion and state, and the more a legal culture is predicated on a “relative” conception of human rights, the greater significance it will attach to feelings as a proper ground for limiting human rights.

Our society is unique. Consequently, the solutions that we must seek are undoubtedly equally unique, or “Israeli-style,” to use Justice Cheshin’s turn of phrase in Meatrael [6], at 506, regarding the separation between religion and state in Israel. Similarly, addressing the relationship between store closures on the Sabbath, because of offense to religious sensibilities, and the harm to public order that such causes, Justice Berenson wrote in Crim. A 217/68 supra. [12], at 364:

I do not know how these matters are resolved in other countries. It is, however, reasonable to assume that each country seeks a solution suitable to its own needs that, on the one hand, is not estranged from the religious values to which its citizens adhere yet, at the same time, promises to provide the necessary services that the public requires.

And so, in setting the “threshold of tolerance,” it is incumbent upon us to consider the substance of the right being infringed, the degree of offensiveness and the probability of the harm. Let us now turn to these principles.

The Right’s Substance

59. How does the substance of the right influence the possibility of infringing it in order to protect religious feelings? Would it not be accurate to assert that all rights are of equal status? The accepted approach—in Israel and abroad—regarding the protection of human rights is that not all rights are of equal status. Is the right to human dignity not different from the right to property? Even within the confines of a given right, various levels of protection may be allotted. Thus, for instance, the protection offered political expression is superior to that allotted commercial expression. See HCJ 606/93 Kiddum Yezumot (1981) v. Broadcasting Authority [41], at 24.

60. This being the case, our concern is with a complicated matter, best left to evolve according to our own legal system’s experience. For the purposes of this petition, it is sufficient that we establish that freedom of movement—the right being violated—is one of the most basic rights. This is true in Israel and in other legal systems as well.  Discussing the “citizen and foreigner’s freedom of movement,” Justice Silberg stated, in HCJ 111/53 Kaufman v. Minister of the Interior [42], at 536, that this right is:

A natural right, recognized as self-evident in every country boasting a democratic regime.

These words ring especially true with regard to freedom of movement inside the country itself. Indeed, the freedom to travel within the country’s borders is generally understood as being of greater constitutional import than the freedom to travel abroad. See Dahar [23], at 708. Freedom of movement within the country’s borders is usually placed on a constitutional plane similar to that of freedom of expression. Hence, for example, in Dahar [23], Deputy President Ben-Porat perceived freedom of movement and freedom of expression as “rights of equal value and weight.” Id.

The Extent of the Harm to Feelings

61. As we have seen, a democracy recognizes the possibility of restricting human rights to prevent harm to human feelings. This having been said, not every hurt feeling justifies violating rights; such harm must be tantamount to a severe offense to human feelings. What intensity of harm will justify an infringement on rights will vary from one right to another. Thus, only severe, serious, and grave offense to another's feelings can justify the infringement of a basic human right, such as freedom of expression. These cases shall be so exceptional that they shake the foundations of mutual tolerance. See A. Barak, Freedom of Expression and its Limitations, 40 HaPraklit 5, 18 (1991-1993) [100].

This was our approach to infringements on the freedom of artistic expression. See HCJ supra. [8], at 16; HCJ 243/81 Yeki Yosha. v. The Film and Play Review Board [44]; HCJ 14/86 supra. [35]; HCJ 806/88 supra. [9]; HCJ 953/89 supra. [34]. This is the law regarding the tension between the freedom of worship of one faith and between offending members of a different stream of belief. HCJ 7128/96 supra. [11]. I believe this approach should apply to the matter here—the balance between freedom of movement within the state and protecting religious sensibilities. As we have seen, substantively, freedom of movement resembles freedom of expression. These rights may be called “superior;” they are granted a "consecrated a place of honor in the temple of basic human rights.” See HCJ 153/83 supra. [22], at 398). Freedom of expression may be infringed to prevent severe, grave and serious harm to human feelings, including religious sensibilities; similarly, it is possible to restrict freedom of movement under such conditions. “The nature of the harm” in question in both instances must be identical. Restricting freedom of movement is only possible when the harm to religious feelings and lifestyle is severe, grave and serious.

62. The severity of the affront to religious feelings is measured by its scope and its depth, as Justice Zamir said in HCJ 7128/96 supra. [11], at 524-25:

The severity of the offensiveness is measured on two levels: its scope and its depth. First, the harm must be broad. It is therefore insufficient that one person or a small group with minority extreme opinions is offended.

Likewise, negligible harm, even if it continues over many years, is insufficient. Both conditions need to be fulfilled: only harm to the religious feelings of a given group that is both broad and deep shall be said to exceed the threshold of tolerance in a manner that may justify restricting another group’s freedom of religious worship.

The Probability of the Harm

63. At times, the severe, grave and serious harm to feelings has already occurred; other times, it is a risk that has yet to materialize. When the latter is the case, does the risk always justify infringing a protected human right? The answer is no. The central status that democracy extends to human rights leads us to conclude that only a very high probability that feelings will be offended will justify infringing on a right. At times, it is held that there must be a “reasonable probability” of the risk materializing. See Crim. A 126/62 Disentzik v. Attorney-General [45]; Neiman [18], at 311.  In other cases, the risk must be “real and serious.” See Dahar [23]. The requisite degree of probability varies from right to right, from case to case, as I noted in HCJ 153/83 supra. [22], at 401-02:

The variety of potential situations necessitates a multi-shaded balancing approach. We must refrain from adopting a single standard for all matters. The reason for this is that conflicting interests are not always of identical normative import and the problems that arise from the different clashes themselves, vary.

In Neiman [18], at 311, I further noted:

In determining which standard of probability should be adopted, an inclusive and universal measure is inappropriate. The matter depends on the magnitude of the various conflicting rights in a given context. The question is always whether the harm’s significance, together with the probability of it materializing, justifies infringing on a citizen’s right.

With respect to anything relating to freedom of expression, our approach is that a mere possibility, or even a reasonable possibility, for that matter, is insufficient for the purpose of violating the public interest. The probability of the harm materializing must be nearly certain or proximately certain. See see HCJ 73/53 supra. [21]; HCJ14/86 supra. [35]; HCJ 806/88 supra. [9]; HCJ 680/88 Schnitzer v. Chief Military Censor [46]. The probability test resembles the standard adopted by this Court regarding violations of freedom of worship and freedom of conscience. See HCJ 292/83 Temple Mount Faithful Association v. Jerusalem District Commander [47], at 456; HCJ 2725/93 Salomon v. Jerusalem District Commander [48]; HCJ 7128/96 supra. [11]. In light of the close link between freedom of movement within the country and freedom of expression and worship, it seems to me that this probability requirement must also apply to infringements on freedom of movement within the state. It shall be noted that the “actual and serious suspicion” standard was adopted with regards to violations of freedom of movement outside the country’s borders. Dahar [23], at 708. This having been said, in that same case, Deputy President Ben-Porat emphasized the difference between freedom of movement inside and outside the state’s borders, and narrowed the “actual and serious suspicion” test so that it applied exclusively to traffic crossing the state's borders. “Internal” traffic should be subject to the near certainty test. 

A “Proper Purpose”  

64. As we have seen, human rights are not to be infringed, save restrictions that are prescribed by statute and enacted for a proper purpose, as per article 8 of the Basic Law: Human Dignity and Liberty. The issue of whether a given purpose is deemed to be proper is ascertained on two levels: the first examines the purpose’s content; the second examines its necessity. On the first level, a given purpose is deemed to be proper if it reflects a social objective, which is sensitive to human rights. Likewise, a purpose is said to be proper if it is intended to fulfill general social goals, such as a broad social policy or preserving the public interest. See Bank Mizrahi [28], at 434. On the second plane, a purpose is deemed reasonable if the need to fulfill it is important to society and to the state’s values. The degree of importance is likely to vary according to the substance of the right that is violated. Thus, for instance, American law distinguishes between three levels of rights. To this effect, freedom of speech, voting rights, freedom of movement and the right to equality are found at the highest level. As these rights are deemed fundamental, only a purpose endeavoring to fulfill a compelling state interest, pressing public necessity, or substantial state interest shall properly infringe them. A lower standard is required with respect to other rights. See 3 A. Barak Interpretation in Law: Constitutional Interpretation [93], at 522. For its part, Canadian law requires that the highest standard be applied to all matters involving human rights. We need not take a stance regarding whether Israeli law should distinguish between different levels of scrutiny. Suffice it to say that, as in foreign law, infringements on freedom of movement—a freedom at the pinnacle of human rights in Israel—requires the highest of standards.

The “Least Restrictive Means”

65. Human rights may be infringed only if the means used do not exceed the necessary. While the “proper purpose” test examines the objective, the “least restrictive means” standard examines the means employed for achieving the purpose. It is a proportionality test, employed in Israel for examining administrative and constitutional discretion. See HCJ 5510/92 Turkeman v. Minister of Defense [49]; HCJ 987/94 Euronet Kavie Zahav (1992) Ltd. v. Minister of Communications [50]; HCJ 3477/95 Ben-Attiyah v. Minister of Education, Culture, and Sport [51]; See also Z. Segal, Grounds for Disproportionality in Administrative Law, 39 HaPraklit 507 (1990-91) [101]; I. Zamir, Israeli Administrative Law as Compared to Germany's, 2 Mishpat U'Memshal 109 (1994-95) [102]. In HCJ 3477/95 supra. [51], at 11-12, I noted that the issue raised by the “proportionality” test is:

Whether the means employed correspond to the objective they seek to realize. Proportionality implies that the means need to befit the goal that is pursued. The principle of proportionality comes to protect the individual from the regime and to prevent excessive infringements on individual freedom. As such, the means that the regime employs must be carefully selected in order to bring about the purpose’s realization.

66. In Israel as in foreign law, the proportionality test is three- pronged. See HCJ 3477/95 supra. [51], at 12; Bank Mizrahi supra. [28], at 436. The first prong requires a rational connection between the means and objective. Thus, the means employed must be precisely “cut out” to fulfill the desired goal and rationally lead to its fulfillment—“the rational connection test.” The second prong prescribes that the means in question infringe on the individual as little as possible. This is to say that the means are said to be proper only if it is not possible to achieve the objective in a different fashion, whereby the infringement would be minimized—“the least restrictive means test." The third prong provides that the means selected are inappropriate if the infringement on individual rights is not related to the benefits said to flow from the desired objective—the “restricted proportionality test." As Professor Zamir, see Zamir supra. [102], at 131, explained:

The third prong refers to the proportionality itself. According to this prong, it is insufficient that the authority select appropriate and moderate means. Instead, the authority must weigh the public benefits of achieving the goal against the harm caused the citizen by the means’ application. The relationship between the benefit and the harm, and indeed between the means and objective, must be proportional.

67. Considering the feelings of one segment of the population may harm other segments. For our purposes, considering the religious sensibilities of Ultra-Orthodox Jews living in the neighborhood of Bar-Ilan Street infringes the freedom of movement of others. The proportionality test provides that infringements on the rights and interests of citizens seeking to travel on Bar-Ilan Street on the Sabbath must be proportional. In other words, the rights of these individuals are not to be infringed beyond what is necessary to safeguard the religious feelings of other individuals. The question of determining the appropriate means—and when infringing on human rights surpasses the necessary means—is examined according to the three-pronged test.

Summarizing the Normative Framework

68. To summarize: consideration of feelings, including religious sensibilities, as proper grounds for infringing on human rights is most problematic from the point of view of a democracy. Democracy finds itself trapped in an internal conflict, which it must naturally address with great care. The Israeli solution is the following: considering feelings as grounds for restricting human rights is only permissible when the following three conditions are met. First, taking feelings into account conforms to the specific objective underlying the legislation. Second, it is permitted to take religious feelings into account only if doing so does not involve any religious coercion. Third, religious feelings may only be considered when the harm to these is so severe that it is said to exceed the proper threshold of tolerance. This threshold shall vary from right to right. Freedom of movement, specifically, can be restricted if such harm surpasses the threshold of tolerance. Several conditions must be met for this to be true. First, the harm to religious feelings and the observant lifestyle must be severe, grave and serious; second, the probability that the harm will materialize must be nearly certain; third, a substantial social interest must underlie the protection of religious feelings; fourth, the extent of the harm to freedom of movement must not exceed the necessary. This is to say that the least restrictive means are to be selected from amongst the available options.

Having set out this general normative framework, let us now examine the specific case at bar.

From the General to the Particular

69. Bar-Ilan Street’s partial closure is based on three pieces of legislation. The basic authority to regulate traffic is set out in section 70(1) of the Traffic Ordinance [Revised Version], which empowers the Minister of Transportation to enact regulations for:

Traffic arrangements, and rules for the use of roads by vehicles, pedestrians and others

The Traffic Regulations were enacted by virtue of this authorization. Regulation 17(a) provides:

The Central Traffic Authority is permitted to direct the Local Traffic Authority regarding the determination of traffic arrangements, their alteration, termination, and maintenance.

As we have seen, the Minister of Transportation, under section 42 of the Basic Law: The Government, assumed the powers of the Traffic Controller. The Minister’s powers cannot exceed those of the Traffic Controller. In his capacity as Traffic Controller, the Minister of Transportation instructed the Local Traffic Authority to close parts of Bar-Ilan Street to traffic on Sabbaths and Jewish holidays during prayer times in order to safeguard the religious sensibilities of the Ultra-Orthodox residents in the area. The order in question was handed down subsequent to the Minister of Transportation’s determination that there is an alternate road to Bar-Ilan Street.   

The Issue of Authority

70. Our starting point is that the Traffic Controller is, in principle, empowered to order that a street be closed to traffic on Sabbaths and Jewish holidays. With respect to local streets situated in Ultra-Orthodox neighborhoods this is undisputed. In principle, the Traffic Ordinance [Revised Version] does not distinguish between various sorts of streets, roads or drives, in all that concerns the Traffic Controller’s authority to regulate traffic therein. As such, the type of road does not affect the authority to order its closure per se, it only influences the exercise of discretion regarding its potential closure.

The Issue of Discretion

71. Did the Minister of Transportation in his capacity as Traffic Controller properly exercise his authority? Our analysis begins with the fact that the Traffic Controller must take into account traffic considerations. It is incumbent on the Controller to ensure that residents be able to reach their homes and be able to travel from point A to point B in a given neighborhood. Moreover, he must ensure that inter-city roads and city entrances remain open to traffic. Were it to become clear that no proper alternate route to Bar-Ilan Street is available, it would not be possible to close it off to traffic on Sabbaths and Jewish holidays, regardless of the harm caused to religious feelings and lifestyle.

72. However, rather than weighing traffic considerations, the Minister of Transportation, in his capacity as Traffic Controller, considered the residents’ religious feelings.  Was he permitted to do so? Clearly, religious matters cannot be the dominant consideration for, as we have seen, the dominant considerations must be traffic-related. However, in view of my assumption that the alternate route is reasonable from a traffic perspective, does it then become possible to take into account secondary considerations, such as those related to safeguarding religious feelings and lifestyle? The answer is in the affirmative. Although traffic related considerations are central, they are not absolute. To this effect, the Court has held that free competition, for instance, was a secondary consideration that could properly be taken into account. See HCJ 1064/94 Computest Rishon Le Tzion (1986) v. Minister of Transportation [52]. Thus, the issue boils down to the following questions: is the religious factor a relevant secondary consideration? If so, what is its weight? Can it exceed the inconvenience associated with rerouting traffic and the two extra minutes that doing so requires? Is this factor sufficiently weighty so as to outweigh the traffic difficulties caused the secular residents in the area, whose freedom to travel is restricted? The answer, needless to say, is far from simple. It is incumbent on us to examine the rights and interests struggling for primacy. Subsequently, we shall proceed to examine whether, under the circumstances, the Minister is authorized to weigh all these rights and interests. Finally, we shall examine whether the weight that the Minister attached to them was appropriate and whether his decision is within the zone of reasonableness.

The Interests and Values Struggling for Primacy

73. Which interests and values clash in the case at bar? On the one hand, we have society's interest in preventing offense to the sensibilities of the local religious population. The population in question, residing immediately around Bar-Ilan Street, is Ultra-Orthodox. Seven synagogues are found along Bar-Ilan Street.  The area boasts over one hundred synagogues and institutions for Torah study. On the Sabbath, the neighborhood residents customarily attend synagogue, Torah lessons, visit rabbis, family and friends who live in the adjacent Ultra-Orthodox neighborhoods. To these residents, the desecration of the Sabbath on Bar-Ilan Street is offensive and infringes their observant lifestyle. Indeed, from their perspective, the offense is both bitter and severe. This is the interest in question on one side of the issue. This having been said, let it be emphasized that I am not convinced that Sabbath traffic on Bar-Ilan Street  infringes the freedom of religion of the residents. These residents are free to observe the religious commandments. Sabbath traffic does not serve to deny them this freedom. Compare HCJ 287/69 Miron v. Minister of Labour [53], at 349. Even so, traffic on the Sabbath does harm the residents’ religious feelings and their observant lifestyle. 

74. On the other hand, we have freedom of movement, to which each citizen is entitled. Freedom of movement is a basic right, guaranteed to each and every Israeli. See Dahar [23], at 708; HCJ 72/87 Atamalla v. Northern Command [54]; Crim. Motion 6654/93 Binkin v. The State of Israel [55]. It is entrenched in the Basic Law: Human Dignity and Liberty. It is derived from the principle of human dignity, which is enshrined in our constitution. Compare Elfassy 6 BferGE (1957) [90]. The individual’s freedom to travel "flows from man’s intrinsic freedom as such, and from the state’s democratic character.” HCJ 3914/92 Lev v. The Tel-Aviv/Jaffa District Rabbinical Court [56], at 506. Each individual in Israel is granted the constitutional right to travel freely. “This constitutional right is self-sufficient, and can even be implied from human dignity and liberty.” HCJ 2481/93 supra.[27], at 472. The significance of freedom of movement is the freedom to travel freely on streets and roads. HCJ 148/79 supra. [24]. It is the freedom to “come and go”—“la liberté d’aller et de venire.” And so, closing Bar-Ilan Street to traffic on the Sabbath—either a full or partial closure—infringes the public’s constitutional right to freedom of movement. Moreover, preventing the free-flow of traffic on city streets injures the public interest in the free-flow of traffic. As Justice Berenson noted in Crim. A 217/68 supra. [12], at 363:

 

The use of private vehicles is increasingly indispensable to the economy and to satisfying collective and individual social and cultural needs. This is particularly true on the Sabbath and holidays, when public transportation is generally unavailable.

Beyond this, closing Bar-Ilan Street to traffic on the Sabbath both inconveniences and financially harms those members of the public wishing to travel along Bar-Ilan Street on the Sabbath. It harms secular Israelis seeking to use Bar-Ilan Street as a traffic artery connecting various Jerusalem neighborhoods. It particularly harms the secular residents residing in Ultra-Orthodox neighborhoods surrounding Bar-Ilan Street. For them, Bar-Ilan Street serves as a traffic artery permitting them to access their lands directly. Closing Bar-Ilan will compel these members of the public to walk from one end of Bar-Ilan Street to the other—a distance of one kilometer and two-hundred meters—in order to reach their homes. Their family and guests will be forced to do the same. Surely, in the end, part of the secular public will revolt against what they perceive as religious coercion. Truth be told, in the League [1] case, Deputy President Agranat pointed out that the order to close a segment of a street to traffic on the Sabbath "in no way…constitutes religious coercion whatsoever, as the order did not compel petitioner number two to act in a way that runs counter to his views regarding religion.” Id., at 2668; Baruch [2], at 165. To my mind, however, this matter is far from simple. Be that as it may, see 1 Rubinstein supra. [92], at 177, note 14, the subjective sensation that one is being religiously coerced is clearly discernable among some members of the public who are prevented from circulating on Bar-Ilan Street during the hours that it is closed to traffic.

75. Employing legal concepts, how are we to characterize the clashing interests here? We have already seen that freedom of movement on the Sabbath is a constitutional right, which is infringed by street closures on that day. How is the interest infringing on this right to be characterized? It does not have the status of a human right. As noted, the offense to religious sensibilities and the observant lifestyle caused by motor traffic on the Sabbath does not infringe the freedom of religion of the observant public. We are not dealing with a horizontal clash between two conflicting human rights. However, the interests of the observant residents in safeguarding their sensibilities and way of life forms part of the public interest in preserving the public peace and public order. See HCJ 230/73 supra. [10], at 121.

In CA 105/92 supra. [20], at 205, I highlighted this public interest:

The public interest, with which the various human rights often clash, is varied. The expression "public interest" encompasses and includes a rainbow of public interests, with which organized society is concerned. As such, public security and welfare are both included, as is the public trust in public authorities. Similarly, the public interest in the recognition of individual rights and the preservation and promotion of tolerance, among citizens and the authorities and the citizens, is included. The rule of law, the independence of the judiciary and the separation of powers are all clearly public interests.

Likewise, in HCJ 14/86 supra. [35], at 430, regarding the need to balance between freedom of expression and public order, I noted:

Public order is a broad concept that is not easily defined, and whose meaning varies depending on the context. In this context, threats to the state’s existence, its democratic regime, as well as public welfare, morality, religious sensibilities, a person’s right to reputation, and the need to guarantee fair legal proceedings are all included under the rubric of public order.

It appears, therefore, that taking into account religious sensibilities and the observant lifestyle forms part of both the public interest and public order. See also HCJ 806/88 supra. [9[], at 29. At the same time, however, the need to preserve the free flow of traffic on Sabbaths and to allow members of the public—whether the public at large or local residents—to travel freely constitutes part of the public interest and of the public order. As such, both clashing interests can be described as falling under the rubric of the "public interest."

The Relevance of the Clashing Interests

76. Is the Minister of Transportation authorized to weigh all clashing interests and values? More specifically, is the religious factor—as part of the public interest—a relevant consideration in the context of the Traffic Controller’s exercise of discretion? As we have seen, offending feelings in general, and religious sensibilities in particular, is a relevant consideration, provided that it does not constitute religious coercion. This is generally the case. Is this consideration relevant with regard to the Traffic Controller’s authority? In my view, the answer is in the affirmative. The approach which perceives the religious factor as a “general consideration” which may be taken into account is equally applicable with regard to the Traffic Controller’s authority to close Bar-Ilan Street. In exercising this authority, the Traffic Controller must consider the interests of all those who use the street, and who are affected by its closure. This includes the religious interests of those affected by regulations respecting Bar-Ilan Street.

In the League [1] case, which dealt with a street closure for the purpose of preventing disturbances to prayers in a nearby synagogue, Acting President Agranat wrote:

There can be no doubt that the respondent was taking into account a religious interest in considering the fact that motor traffic on the streets, on festivals and Sabbaths, disturbs the concentration of the worshippers of the Yeshurun synagogue, preventing them from praying comfortably. There is no fault in that—just as there is no fault in considering cultural, commercial, or health interests, provided that they affect a significant part of the public.

Id.. at 2668. In a similar vein, in Baruch [2], at 163-65, Acting President Landau noted:

The petitioners’ submission that the respondent exceeded his authority, as per the Traffic Ordinance and Traffic Regulations, by taking into account the religious public’s sensibilities is not convincing…

Ensuring the Sabbath rest, in accordance with the lifestyle of the interested public, is within the Traffic Controller’s authority to regulate road-traffic

For our purposes, just as motor traffic along Jerusalem’s King George Street disrupts prayers at the Yeshurun synagogue, vehicles on the segment of HaShomer street, in the heart of Bnei’ Brak, also disturb the Sabbath rest of the local residents in that clearly Ultra-Orthodox area. Safeguarding this interest is not tantamount to religious coercion. Instead, it is merely extending protection to the observant lifestyle.

Hence, the Traffic Controller—for our purposes, the Minister of Transportation—was authorized to take into account the offense to religious sensibilities and the observant lifestyle of the local residents, living around Bar-Ilan Street, as a relevant consideration in exercising his discretion with respect to the partial closing of that street to traffic on Sabbaths and holidays. The key question, however, is how to balance between the relevant religious consideration and the other conflicting considerations. It is to this issue that we now turn.

The Balance Between the Relevant Considerations

77. The key issue in the petition at bar relates to the balance between the freedom of movement and the religious consideration, as well as all other relevant considerations. It is incumbent on the Minister of Transportation to balance safeguarding the religious sensibilities of the local residents against the right of each member of the public to travel on Bar-Ilan Street every day of the week, as well as the public interest in keeping the street open year-round. Acting President Agranat emphasized this point in League [1] at 2668, noting:

The legislature’s objective was to empower the Central Traffic Authority to regulate traffic on city streets…to this end, the vehicles’ proprietors’ and pedestrians’ interest in using public roads for their various needs as well as the legitimate needs of other segments of the public, particularly those residing in the houses adjacent to public roads and those using them were considered. As the District Attorney has argued, the problem to which the Central Traffic Authority must consider in such circumstances is the need to strike a proper balance between these interests.

The Central Traffic Authority is under a duty to address every concrete case in light of the particular circumstances, taking into account all the interests that the street’s closure may affect.  In the end, the problem is one of measure and degree.

In a similar vein, Acting President Landau emphasized the need to balance between conflicting interests in Baruch [2], at 165:

It is necessary to strike a balance between the conflicting interests; this is a matter of measure and degree. It is but one manifestation of the endless problem of how to reconcile two “camps”—the secular and the Ultra-Orthodox—so that they live in peace in mutual respect, so that neither seeks to "conquer" the other or "triumph" at the other’s expense.

Our case also presents the same balancing conundrum, which arises between conflicting values and interests. No one has so argued that the public interest in preventing traffic from circulating on Bar-Ilan Street on the Sabbath is “existential,” and that other interests cannot be weighed against it. Similarly, the view that the public interest in the free-flow of traffic on Bar-Ilan Street on Sabbaths is “existential” and cannot be balanced must equally be rejected.

78. As noted, the proper balance is arrived at through examination of the limitation clause of the Basic Law: Human Dignity and Liberty. The State of Israel’s values as a Jewish state require us to consider religious sensibilities, and indeed attach significant weight to this factor. The essence of the problem is in the State of Israel’s values as a democratic state. We have seen that, in this context, it is proper to take into account the religious feelings of the religious public residing around Bar-Ilan Street, if the Sabbath traffic arrangements aimed at safeguarding these constitute a substantial social need, if allowing traffic to travel on the Sabbath and festivals offends religious feelings in a manner that is severe, grave and serious, and if the probability of this harm materializing is nearly certain. Then and only then does it become possible to say that the harm to religious sensibilities and the observant lifestyle of the Ultra-Orthodox residing around Bar-Ilan Street exceeds the threshold of tolerance which is acceptable in a democratic society.  Is this the case here?

79. To my mind, the harm to the Ultra-Orthodox public’s religious feelings ensuing from the free-flow of traffic on the Sabbath in the heart of their neighborhood is severe, grave and serious. Indeed, to the religious Jew, the Sabbath is not merely a list of the permitted and the forbidden. Rather, the observant Jew perceives the Sabbath as a normative framework, intended to create a particular atmosphere. Our Rabbis, of blessed memory, described this special atmosphere as the additional soul which man is granted upon the entrance of the Sabbath, which leaves him as it exits. Babylonian Talmud, Tractate Beitza 16a, [110]. This rest is intended to bring the routine of daily life to a halt, and relieve man of daily worries. This rest seeks to permit a person to fully dedicate himself to his family and to his most cherished values. Moreover, rather than merely a private or family affair, the Sabbath is a community matter. Thus, an observant community’s expectation is that the Sabbath rest is not restricted to the private domain of its members, but that it will envelop the public realm as well. With the coming of the Sabbath comes rest, not only to one’s backyard but throughout the neighborhood. The hustle and bustle of daily life is replaced by prayer, family walks and the like. A crowded street that traverses the heart of the neighborhood, with the sounds of honking and engines, stands in stark contrast to the Sabbath atmosphere, as the majority of the local residents understand it. In effect, severe, grave and serious harm to a religious Jew observing the Sabbath ensues upon encountering traffic on one’s way to synagogue or to a Torah institute. As usual, the burden of proving the severity of the harm is on the person claiming to have been injured. In the case at bar, this has not been the subject of dispute and was proven in the various affidavits submitted to the Court.

80. It should be emphasized that the excessive harm to religious feelings here is a result of the fact that Bar-Ilan Street is situated in the heart of the Ultra-Orthodox neighborhoods. Prior the Six Day War, Bar-Ilan Street was found at the periphery of the religious neighborhoods. Traffic on the Sabbath traveled along the neighborhood's periphery, so that even if religious feelings happened to be offended once in a while, the offense was negligible. The uniqueness of our case is a function of Bar-Ilan’s location in the heart of the Ultra-Orthodox neighborhoods, so that traffic on Sabbaths causes severe harm to religious feelings. This is also the difference between Bar-Ilan Street and other surrounding streets. While these other streets are also situated next to religious neighborhoods, their location is peripheral and they will therefore remain open to traffic on Sabbaths. The Ultra-Orthodox are offended on those streets also. However that harm cannot be said to surpass the threshold of tolerance expected in a democratic society.

81. The near certainty test is met in this case. Indeed, the severe, grave and serious harm to the religious feelings of the local residents caused by the Sabbath traffic is not a question of probability. It is proven fact. In dealing with the probability of religious feelings being offended as a result of a certain film being screened, in HCJ 806/88 supra. [9], at 41, Justice Goldberg wrote:

The clash between two basic values requires an estimation of the "relative social importance of the various principles" an examination of the probability, force, extent and scope of the harm that one principle causes the other.

The probability test, which ascertains the likelihood of harm, is outside the scope of examination in this instance. There is a need to consider to the probability of the harm as long as we are incapable of establishing the facts. In such cases, it is incumbent on us to estimate the risk of the harm. As such, we accept the "near certainty" test as the proper test respecting the Film and Play Review Board’s authority. In such circumstances, we must estimate the risk that a particular film will endanger the public welfare and whether the level of risk is one of "near certainty."

However, when we can determine ourselves whether a given film offends religious sensibilities or denigrates a person’s reputation, it is not necessary to estimate the likelihood of harm. In such instances, our eyes are capable of seeing and our ears of hearing whether harm of this nature is in fact present.

This is the law in this matter. Beyond "near certainty," absolute certainty was unequivocally proven. It was proven that the religious feelings and lifestyle of the local Ultra-Orthodox residents are in fact severely, gravely, and seriously offended by reason of traffic going through their neighborhood on Sabbaths and festivals.

82. Freedom of movement is not to be restricted absent a “proper purpose.” A purpose is said to be proper if its content and the need it addresses are proper. In my opinion, in terms of content, safeguarding religious feelings and the observant lifestyle constitutes a proper purpose. That conclusion is dictated by the State of Israel’s values as a Jewish and democratic state. It is also prescribed by the special purpose underlying the Traffic Controller’s authority—the religious factor—which although not the sole, or even dominant, objective, is a proper secondary purpose. The most difficult question is whether the need to realize this secondary objective is a “significant social matter.” Mr. Langer, the Acting National Traffic Controller, was initially convinced that the social need to close Bar-Ilan Street on the Sabbath was not significant. It seems to me that, according to an objective standard, the case is borderline. Under these circumstances, there is no basis for interference with the assessment of the Traffic Controller. In effect, had Mr. Langer not changed his original position, there would be no reason to question his decision. Neither is his change of heart, in my view, to be deemed erroneous. Thus, both decisions—whether forbidding traffic along Bar-Ilan Street on Sabbaths or then allowing it—appear to me to be within the zone of reasonableness regarding the need to close the street.

83. Freedom of movement—the right infringed by Bar-Ilan’s closure on Sabbaths—must not be restricted beyond what is strictly necessary. Is this condition met in this instance? This matter is difficult to resolve. This having been said, it appears to me that Bar-Ilan Street’s absolute closure throughout the Sabbath, from beginning to end, is excessive. As the harm to religious feelings and lifestyle is inflicted during prayer times, closing the street beyond those times would infringe the freedom of movement more than is necessary. Indeed, it is incumbent on the authorities to opt for the least restrictive means at their disposal. For our purposes, the least restrictive means would be a partial closure, during prayer times, at which time religious feelings are most offended, rather than imposing an absolute closure. This is undoubtedly the case from the perspective of the secular residents, who would be unable to reach their homes throughout the Sabbath, were an absolute closure to be imposed.

 This having been said, is closing the street to traffic only during prayer hours excessive? To this end, we must distinguish between harm to the interests and values of those secular individuals residing outside the Ultra-Orthodox neighborhoods crossed by Bar-Ilan Street, and the harm caused the interests and values of their counterparts, residing within these neighborhoods. This distinction is vital in light of Bar-Ilan Street’s role as a traffic artery connecting neighborhoods and its providing access to the property of the local residents. 

84. The harm caused to the secular members of the public, residing outside the Ultra-Orthodox neighborhoods serviced by Bar-Ilan Street, who seek to exercise their freedom of movement and right to travel from one end of the city to the other, is not excessive. As pointed out, all that is required of them is a detour, taking no more than two extra minutes. While this is an infringement on their freedom of movement, it is not excessive due to the three following conditions. First, the alternative routes are open to traffic on Sabbaths. Second, Bar-Ilan Street itself is open to traffic on Sabbath, save prayer times. If, in practice, it will not be possible to travel on Bar-Ilan Street at times other than during prayers, the harm to the secular public shall be deemed excessive. Consequently, if the violence on Bar-Ilan Street on Sabbaths will continue during the times that traffic is permitted, this will excessively burden the secular residents’ freedom of movement. Third, Bar-Ilan Street is open to security and emergency vehicles even during the hours that it is closed to traffic. Bar-Ilan Street serves as a traffic artery leading to Hadassa Hospital, located on Mount Scopus. The two extra minutes it takes to arrive through the alternate route are crucial when it comes to saving human lives. The same applies to security vehicles, endeavoring to preserve the public peace. Such vehicles may freely travel along Bar-Ilan Street at all hours.

85. The matter is quite different with regard to the area’s secular residents of Bar-Ilan Street, or those secular members of the public looking to visit family or religious friends living in Ultra-Orthodox neighborhoods. The partial closure of Bar-Ilan Street severely infringes their freedom of movement. The harm is grave as, prior to the closure, secular members of the public, as well as their family and guests, living in the Ultra-Orthodox neighborhoods were able to park their vehicles on Bar-Ilan Street and reach their residences on foot from there. This closure, however, will compel secular residents to park at the northern or southern end of Bar-Ilan Street, and to walk the length of Bar-Ilan. This walk, which is by no means short, does not constitute a reasonable alternative. The alternate routes of Route no. One and Route no. Four are intended to allow traffic to flow from one end of the city to the other. What, however, will become of the secular residing in the Ultra-Orthodox neighborhoods themselves?

86. This question is by no means simple. Closing Bar-Ilan Street to traffic on the Sabbath causes severe harm to the secular residents living in neighborhoods around Bar-Ilan Street. They were also harmed in the past, when the neighborhood's inner streets were closed off, and now, unable to reach their homes, they suffer additional harm. This having been said, the harm in question is narrow in scope as they are perfectly able to travel along Bar-Ilan Street at all hours, save prayer times when the street is closed, including Fridays the Sabbath and holidays.

Is this infringement lawful? Can it not be said that the infringement on the secular residents’ freedom of movement is excessive? Every effort should be made in order to minimize injury to these secular residents. Consequently, it is only appropriate to consider the possibility of granting special permission to the secular residents to use Bar-Ilan Street even when it is closed. Just as security and emergency vehicles are permitted to use the street on the Sabbath, the same possibility should be extended to local secular residents. Undoubtedly, this is the case regarding the physically challenged, see HCJ 5090/96, or those residents whose occupation requires it, such as petitioner number three.

87. In practice, to what degree would the secular residents living in Ultra-Orthodox neighborhoods around Bar-Ilan Street be harmed were the street to be partially closed? How many secular residents live in these neighborhoods and how will the street’s partial closure harm them? The evidence before us does not provide a satisfactory answer to any of these questions. Mr. Langer did not examine this matter in drafting his order to partially close the street to traffic. Instead, he relied on the data collected by the Sturm Committee. While the report is in the Court’s possession, we do not have the protocols of the Committee's discussions, nor is there any information regarding the local secular residents—if such information was ever presented to the Sturm Committee. In his decision, the Minister of Transportation relied on the Tzameret Committee’s report, which also does not contain data regarding the secular residents. Responding to our inquiries on the matter, the state informed us that no data respecting the secular residents was in possession of the Minister of Transportation. It emphasized that at no time was the Minister approached by secular residents opposing Bar-Ilan’s closure. The assumption, therefore, was that most local residents were Ultra-Orthodox. Regarding this issue, the petitions before us contradict each other. One petitioner stated before the Court that “there are still numerous secular residents living in the area, such as non-observant elderly couples who are regularly visited by their children on Sabbaths and holidays.” See supra para. 15. In contrast, the petition of the Committee of Tel-Arza and Bar-Ilan Street Neighborhoods stated that “nearly one hundred percent” of the those living around Bar-Ilan Street keep the Sabbath, and that there are less than fifty secular residents in the area.

The Law of Administrative Procedure: Gathering Data and Related Flaws

88. Case law provides that a government decision must be based on and supported by relevant facts. To this end, the authority must gather the relevant data and verify the fruits of its search with extreme care, as noted in HCJ 297/82 Brenner v. Minister of the Interior [57], at 48-49, by Acting President Shamgar:

The decision must always be the product of serious, fair and systematic research…

The decision-making process by the authority must be composed of a number of crucial basic stages. These include the gathering and summarizing of data, verifying the data’s significance—which, in the event of alternative thesis, includes verifying the propositions and ramification of the conflicting thesis—and, finally, summarizing the reasoned decision. This process ensures that the relevant considerations are taken into account, that the arguments submitted are fairly examined, and that the resulting decision will withstand a legal and public critique.

89. What are the ramifications of the government authority’s failure to perform a proper verification? The consequences are a function of the circumstances. Thus, not every violation of proper administrative procedure will result in the administrative decision being struck down. In HCJ 2911/94 Baki v. Director General of the Ministry of the Interior [58], at 304, Justice Zamir wrote:

We must draw a clear distinction between the rule binding the administrative authority and the remedy granted by the Court when that rule is transgressed. The rule is found on one plane and the remedy in another. After the fact, the Court will weigh different considerations than the factors the authority should have weighed.

In a similar vein, in HCJ 2918/93 Municipality of Kiryat-Gat v. The State of Israel [59], at 848, Justice Dorner pointed out:

It is necessary to distinguish between primary rules, guiding the administration’s actions, and secondary rules, regulating the legal results of violating these primary rules and the remedies for such violations.

Indeed, not every flaw causes an administrative decision to be struck down. Generally, only a substantive violation leads to such a result. See HCJ 161/80 San Tropez Hotel Ltd. v. Israel Lands Authority [60], at 711; HCJ 465/93 Tridet v. Local Council for Planning and Building, Herzliah [61], at 635. The effect of a procedural flaw depends on two factors. First, we must ascertain whether the violation of administrative procedure influenced the decision’s content. Second, we must assess what effect striking down the decision will have on individuals and society. See HCJ 400/89 Levitt v. President of the Military Trubunal, Southern District [62], at 711. Thus, Professor Zamir was correct to point out that:

Only a substantive violation of administrative procedure, infringing a legal principle or a human right, is enough to justify the decision’s reversal.

The issue of whether the violation is substantive, which would justify the decision’s reversal, is in every case determined by two considerations. First, whether the violation is likely to have influenced the decision, or, in other words, whether the decision would have been different in its absence. Second, what are the benefits to the parties and society if the decision is struck down.

II Zamir supra.[91], at  683-84.

90. As we have seen, the Minister of Transportation did not make an appropriate factual assessment of the impact of the closure on the secular residents living in the Bar-Ilan Street area. Instead, the Minister related to Bar-Ilan Street as a main traffic artery that did not provide direct access to adjacent land owners, whereas the street also provides direct access to adjacent lands. As a result, the concerns of secular residents living in Ultra-Orthdox neighborhoods who would be harmed by the street’s closure on the Sabbath were not addressed. Let it be noted that the Sturm Committee encountered a similar problem regarding Sabbath and festival street closures in the Har-Nof neighborhood. From an administrative procedural perspective, the Committee acted properly. It called on the secular residents to provide information on their place of residence and mapped out their location. It also marked the roads and access-ways to remain open to the secular residents and their guests. The Minister of Transportation, for his part, did none of these things. Is this flaw substantive? From the perspective of the first consideration—namely, the flaw’s influence on the decision’s content—the flaw in question can surely be said to be substantive. As we have seen, the data regarding the secular residents living in the Ultra-Orthodox neighborhoods around Bar-Ilan Street is completely absent. The flaw is equally substantial from the perspective of the second consideration—the effect of striking down the decision, both generally and specifically. Indeed, striking down the Minister’s decision will preclude the street’s immediate closure. As a result, the severe, grave, and serious harm to the Ultra-Orthodox residents’ religious sensibilities will persist. This however, is inevitable when the freedom of movement is at play, prior to determining an appropriate and factually grounded balance between this right and between harm to religious feelings and lifestyle. 

Additional Arguments

91. Various arguments were raised in written and oral submissions made before the Court. To the extent I have not addressed these arguments in my decision, they are rejected. These arguments do not affect the legal structure of this decision, and they failed to sway my opinion on the matter. 

Conclusion

92. In all that relates to the use of Bar-Ilan Street as a main artery, serving to connect various Jerusalem neighborhoods, the Minister’s decision is within the zone of reasonableness. In contrast, the Minister’s decision is flawed in its failure to address the plight of the secular residents living in Ultra-Orthodox neighborhoods and, as such, must be struck down. There is no alternative save to declare the Minister’s decision ordering the street’s partial closure null and void. It will be incumbent on the Minister to reconsider his policy respecting Bar-Ilan Street’s partial closure, bearing in mind that it is a traffic artery, providing direct access to the adjacent lands.

Additional Comments

The Tzameret Committee

 93. While I did not address the Tzameret Committee’s recommendations in my judgment, this in itself no way reflects my opinion regarding their importance. Indeed, the Committee’s recommendations are most important, and my hope is that they will be seriously considered. The Tzameret Committee was set up as per the Court’s suggestion, based on our understanding that the Sabbath traffic issues in Ultra-Orthodox neighborhoods can only be resolved by way of agreement and compromise.  The problem is both sensitive and grave. It relates to the larger problem of Sabbath traffic in Jerusalem and to religious-secular relations in these matters. These problems, by their very nature, best lend themselves to a social rather than legal solution. Social consensus, based on compromise, is by far preferable to an imposed judicial decision, as President Shamgar noted in Hoffman [39], at 354-55, which dealt with prayer at the Western Wall:

All this leads us down the treacherous road of balancing between conflicting persuasions, convictions and opinions. In this context, it is far better to recall that the exclusive focus on the "miracle cures" that our generation expects to be handed down in Court, is not necessarily the appropriate solution or the desired cure for all our ills. These solutions are imposed and judicially ordered, rather than agreed upon in instances where experience seems to suggest that understanding and discussion between proponents of opposing viewpoints, although at first glance appearing more difficult, is far more fruitful.

While the Tzameret Committee operated precisely in this spirit, a compromise was not reached and a social covenant was not struck. Thus, we rule on the matter for lack of choice. This having been said, the Court cannot adopt the Tzameret Committee’s views in our judicial decision. Our concern is with Bar-Ilan Street’s closure to traffic on the Sabbath. Thus, while permitting public transportation on the Sabbath in a different place is likely to constitute a proper social balance, it is nonetheless irrelevant to reaching a judicial decision. Indeed, not all that is relevant in the social or political sphere is equally relevant in the legal sphere. For instance, the Court itself proposed that the problem of closing Bar-Ilan Street be resolved by opening Yam Suf Street, as a basis for agreement and compromise. While this suggestion may be an appropriate social compromise, it has no any bearing on a judicial ruling. As a social compromise was not successfully reached, our judicial ruling is inevitable. Such a ruling is anchored in relevant considerations exclusively. To this end, the Tzameret Committee’s recommendations are merely of secondary import.

“The Slippery Slope”

94. The following argument was made before the Court: if Bar-Ilan Street is closed to traffic on Sabbaths, even partially, the domino effect will be powerful. Additional traffic arteries will be closed, as will main roads. The entrance to Jerusalem will soon follow suit, as will streets across Israel.

As a judge, it is not for me to provide a political response to these concerns. My response can only be legal, and it is the following: any decision to close a street, road, or city entrance to traffic will have to be analyzed on a case by case basis. Thus, the legality of a particular closure does not imply that a different street’s closure is legal. We judges are quite capable of distinguishing between different streets, between one closure and the next. In this vein, in HCJ 606/93 supra. [41], at 26, Justice Cheshin correctly noted:

One of our roles as judges—and a difficult one at that—is  knowing how to distinguish between essence and periphery, between one case and another, between various nuances. The fact that a particular case is difficult does not justify that we refrain from attempting to distinguish it from other cases.

This is the law for our purposes. We are addressing the matter of Bar-Ilan Street, and that matter alone. I have concluded that there are reasonable alternatives to Bar-Ilan Street with regards to its use as a traffic route connecting various parts of the city—as opposed to its use as an access way to the homes of local secular residents.

What then will be the law when the issue of Sabbath traffic on a different traffic artery arises? Such a case shall be evaluated according to the same measure employed in the case at bar, no more and no less. I am not prepared to change the legal measure for future fears that have yet to materialize. Such fears are based on speculation. The “slippery slope” argument is a difficult one, which we must always address with a certain degree of skepticism. See F. Schauer, Slippery Slopes, 99 Harv. L. Rev. 361 (1986) [107]. Thus, while it may very well be that the slippery slope is indeed quite perilous, the slippery slope argument is by far more dangerous.

The Lack of a Legal Standard

95. It has been argued that, because the Minister of Transportation failed to set forth a framework of criteria for the exercise of his discretion, that his decision is flawed. Indeed, it is unfortunate that he did not set out such criteria. It is appropriate that the government authorities set out criteria for the exercise of their discretion. See 2 Zamir supra. [91], at 780. These would provide the administrative authority with the opportunity to set proper policy in a conscious and carefully planned manner. Such criteria help prevent discrimination, allow for long-term planning, and subject the exercise of discretion to review. This having been said, I am not convinced that the lack of independent guidelines here is sufficient to invalidate the Minister’s decision. The closure of main traffic arteries is by no means a routine matter. Each case is evaluated individually, on its own merits. Even so, it is appropriate that the Minister of Transportation to set guidelines in these matters.

96. The lack of independent guidelines was felt was in relation to the choice of alternatives to the closed route. Here, the Court was informed that there were alternate routes to Bar-Ilan Street, one of these being through Route no. Four, the other being Route no. One. Both these roads pass Ultra-Orthodox neighborhoods. We heard arguments asserting that that there is no basis for preferring Bar-Ilan’s Ultra-Orthodox residents’ religious feelings and the observant lifestyle over those of their counterparts residing around Route no. One and Route no. Four. According to which criteria did the Minister exercise his discretion in this instance? Moreover, what will become of Bar-Ilan Street’s closure in the event that demands to close these two alternate roads on the Sabbath will arise? According to which criteria will the Minister of Transportation act under such circumstances? These are important questions indeed. In my view, the answer to them is to be found in the material before the Court. As to the first question, we emphasized the difference between streets that go through the heart of an Ultra-Orthodox neighborhood—where  thousands of Ultra-Orthodox individuals reside on both sides of such streets—and roads that are found at the neighborhood’s periphery.

With respect to the second question, it is clear that, as soon as we consider the possibility of closing the alternate route, the issue of the original route’s closure resurfaces. Our concern is with complementary solutions. It is possible to partially close Bar-Ilan Street provided that an alternate route remains open to traffic on the Sabbath. However, the moment that the alternate route is closed to traffic on Sabbath, Bar-Ilan Street must be opened. This position is shared by the Minister of Transportation who noted:

For as long as the road in closed...Golda Meir Boulevard (Ramot Road) shall remain open, as will the entrances to the city.

See para. 25 of the Minister’s response brief. Let us add Route no. One to this statement. Clearly, it is best that the Minister prescribe a general formula for these purposes, which relates to all alternate routes. It is our hope that, in the future, this will be done.

97. Related to the issue of the proper legal standard is the question of how requests to close streets for religious reasons are to be dealt with. To this effect, the Tzameret Committee distinguished between various categories of roads. The Committee recommended that the authorized local and central bodies decide the matter. It also discussed when a reasonable alternate route is required and when it is not. In addition, it proposed that an appeals board be set up, which would enable decisions about street closures to be appealed. In this regard, the Minister’s decision was:

It is incumbent on the relevant actors to examine these recommendations in detail. If, subsequent to an examination of this nature, these professionals recommend that the recommendations be implemented, and in the event that I see fit to accept them, it will be necessary to change the law accordingly.

The matter, however, is left to the discretion of the Minister of Transportation. It is appropriate that these suggestions be positively weighed. Particularly important is the appeals board, which, if set up, will enable interested citizens to appeal decisions. Indeed, were such an appeals board in existence today, we would have perhaps learned the number of secular residents living in Ultra-Orthodox neighborhoods around Bar-Ilan. It is our hope that these issues will be decided speedily, allowing the Traffic Controller to decide afresh with respect to Sabbath street closures while also granting the right to appeal these decisions. Even so, it is clear that—from an administrative procedural perspective—the lack of this appeals mechanism will not influence the validity of the decisions.

98. It has been argued before the Court that the matter of Sabbath street closures must be regulated by statute. This approach is indeed proper. The subject matter is important and it is appropriate that it be enshrined in legislation. Moreover, it is also appropriate that the legislature prescribe primary arrangements and leave secondary determinations to administrative authorities.

While this is how a constitutional democracy operates, this is not the question placed before us. Our question is whether the existing legal regime, which endows the Traffic Controller with the authority to determine primary arrangements respecting the flow of traffic—such as the matter of Sabbath street closures—is illegal because the primary arrangements are not enshrined in legislation. This question is to be answered in the negative. We are not to substitute the desired law for the existing law. Many are the matters in our lives, which in the past were regulated by secondary legislation but were in fact worthy of being anchored in primary legislation. Suffice it to cite the matter of recruiting Yeshiva students to the army. It has been argued that this last issue is an important one which would best be anchored in primary legislation. With this the Court agreed. Nevertheless, we held that the lack of primary arrangements prescribed by statute does not invalidate the secondary legislation in this respect. See Ressler [33], at 501. This too is the law in the case at bar. While this is not desirable, it is nonetheless legal.

Violence

99. For a considerable amount of time now, Ultra-Orthodox factions have engaged in violent activities on Bar-Ilan Street. Stones were thrown at passing cars, and police intervention was required, Sabbath after Sabbath. There are those who believe that this violence has succeeded in bringing about a new perspective regarding freedom of movement on Bar-Ilan Street. This is to say that the street’s partial closure will, to a certain extent, be tantamount to rewarding this violence, as Justice Landau so accurately described in Baruch, at 165 [2]:

In a law-abiding country such as ours, the physical pressure of illegal demonstrations and violent protests must never be allowed to impose solutions. Violence breeds violence and a country that allows such violence to succeed will destroy itself from within. I am fearful that this issue can serve as an obvious example of such destruction, for it gives the impression that the riots and demonstrations which took place pressured the government into searching for a new solution to the problem.

This having been said, the fact that it was the violence that pushed the matter to the fore, and that precipitated the matter’s review, does not, in and of itself, provide sufficient reason to strike down the decision—provided that its content was not influenced by the violence. Justice Landau insisted on this point in Baruch, at 165 [2], holding:

How shall the Court, in hindsight, deal with the unfortunate fact that the administrative arrangement in question was reached only after violence? Certainly, no court would validate an invalid arrangement for fear that voiding it will result in renewed violence. Nor will it, on the other hand, strike down an arrangement, which appears both valid and appropriate, only because it was motivated by an attempt to find a deal with violence. The proper response to illegal activities is an appropriate police reaction, and the enforcement of the penal law.

Indeed, we must distinguish between this violence and the administrative authority exercised in its wake. All legal means must be employed to fight the violence, see HCJ 153/83 supra. [22], at 406, and every person’s freedom of movement must be protected. “Maintaining an arrangement does not imply surrender to those threatening to violate it. Rather, it is extending shelter and protection to the victims of such violence-mongers.” HCJ 166/71 Halon v.Head of the Local Council  of Ousfiah [63], at 594. (Berenson, J.) Freedom of movement in Israel must not be allowed to fall prey to violence.

100. As for the exercise of administrative discretion, such discretion is deemed flawed when it is influenced by the violence on the street. Compare HCJ 549/75 supra. [40], at 764. The balances between the various relevant considerations must be struck on the basis of their respective weight. The violence on the street must not influence this weight. A government authority whose path is influenced by violence on the street is destined to falter. In this respect, Justice Silberg, in HCJ 155/60 Elazar v. Mayor of Bat-Yam [64], at 1512, correctly pointed out:

Today, there may be demonstrations and protests by various religious factions; tomorrow, the anti-religious sectors may be the ones accused of running amok and disturbing the peace… this phenomenon is a Sword of Damocles dangerously dangling over us, leading to the surrender of public institutions to the terror on the streets.

Justice Landau, in HCJ 512/81 The Archeological Institute of Hebrew University, Jerusalem v. Minister of Education and Culture [65], at 543, spoke in a similar spirit:

Tolerance and patience are indeed necessary, as is considering the feelings of the other side. This by no means implies that one should surrender to the pressure from illegal demonstrations and the violent behavior of extremist groups, seeking to impose their views and will on government authorities, whose authority they do not recognize.

This having been said, the proper exercise of discretion is not to be invalidated merely because violence raised an awareness of the problem. Such is the case here. I am convinced that the decision of the Minister of Transportation was taken with a proper understanding of freedom of movement and its influence on the Ultra-Orthodox public’s religious sensibilities. As such, his decision was not influenced by the violence, except for the fact that it was the violence which brought the matter to the Minister’s attention.

101.  The Minister’s decision was to partially close Bar-Ilan Street on Sabbaths. We have seen that this decision strikes a proper balance between the conflicting considerations regarding the flow of traffic within the city. As noted, the full closure of the street would excessively infringe the freedom of movement. This being the case, the decision to close the street to traffic during certain hours is premised on the fact that it will be open for the remainder of the day. If the violence will continue, however, and if it will affect the free-flow of traffic during the hours when vehicles are permitted to travel, then secular residents will likely refrain from driving on Bar-Ilan for fear of being attacked. If this scenario materializes, the delicate balance struck shall be undermined. Under such circumstances, there will be no choice but to fully reopen Bar-Ilan to traffic on the Sabbath, with the police strictly enforcing the law.

Tolerance

102. Tolerance is among Israel’s values as a democratic state. It is by virtue of tolerance that rights may at times be infringed on in order to protect feelings, including religious sensibilities. Tolerance is also one of the State of Israel’s values as a Jewish state, as noted by Justice Elon, in Neiman [18], at 296:

This is the doctrine of government in our Jewish heritage—tolerance for all, of each and every group, to each opinion and each world-view. Tolerance and mutual understanding ensure that each individual and every group has a right to express its views.

Hence, tolerance serves as a measure for striking the proper balance between various clashing values, as I noted in CA 294/91 supra. [19], at 521:

Tolerance constitutes both an end and a means. It is in itself a social end, which every democratic society must aspire to fulfill. It equally serves as means, as a tool for balancing between social goals, and allowing for their reconciliation when they clash with each other.

How is one to be tolerant towards those who are not?  In the petitions before us, we repeatedly heard the argument that the Ultra-Orthodox residents are not tolerant of their secular counterparts. They are not prepared for any compromise whatsoever, as tolerance would dictate. An example of their unwillingness to compromise is the fact that they rejected the Court’s proposal regarding the closure of Yam-Suf Street. It was argued that they view tolerance as a one-way street—to serve their interests, absent any compromise on their part.

103. It cannot be denied that these contentions do have a certain basis in the facts presented. The Ultra-Orthodox’s refusal to compromise regarding Yam-Suf Street was a difficult blow. In truth, tolerance should be mutual, as President Shamgar wrote in Hoffman [39], at 354:

Tolerance and patience are not one-way norms, but broad, multi-dimensional imperatives…tolerance is not to be invoked only to collect rights, but rather, as a measure for recognizing one’s fellow’s entitlements…tolerance must be mutual. Shows of strength that surface from violent groups are not worthy of such tolerance.

What then is the law when certain groups in society are intolerant? Are they then unworthy of tolerance? To my mind, it is incumbent upon us to be consistent in our understanding of democracy. According to the democratic perspective, the tolerance that guides society’s members is tolerance of everyone—even towards intolerance, as I wrote in HCJ 399/85 supra. [25], at pp. 276-277:

The democratic regime is based on tolerance…tolerance of our fellows’ deeds and views. This includes tolerance of those who are themselves intolerant. Tolerance is the force that unites us and permits co-existence in a pluralistic society such as ours.

It is incumbent upon us to be tolerant even of those who are intolerant of us, due to the fact that we cannot afford to be otherwise. Because if we are not tolerant of the intolerant we shall undermine the very basis of our collective existence, premised on a variety of opinions and views, including those that we disagree with, and including the view that tolerance is not mutual.

 

 

Judicial Review

104. The Minister of Transportation was faced with a difficult situation, which can legally be dealt with several ways. Thus, he would have been authorized to decide to continue with the status quo. In other words, Bar-Ilan Street would have remained open to traffic. This would have been a proper decision, striking an appropriate balance between the various considerations to be taken into account. This, however, was not the Minister’s decision. Instead, he opted for a partial closure of the street on Sabbaths. He was authorized to do so in all that regards the use of Bar-Ilan as a traffic artery without direct access to adjacent land users. His decision to this effect is within the zone of reasonableness. Under these circumstances, there isn’t any place for the High Court’s intervention. In fact, the question is not how the Court would act, if it were in the Traffic Controller’s place, but rather if the latter acted as a reasonable Traffic Controller would have. My answer to this question is in the affirmative. This, however, is not the case with respect to the use of Bar-Ilan Street as a traffic artery which also provides access to adjacent land users. In this respect, the administrative process was flawed and the decision adopted deviated from the realm of reasonableness. In this regard, the Court has no choice but to intervene.

 A Final Word

105. Long have I traveled down the treacherous road that is Bar-Ilan. The case before us is by no means simple. From a legal perspective, it is most difficult. A constitutional democracy will hesitate before it infringes human rights in order to safeguard feelings. A delicate balance between conflicting considerations is required, and this balance is not in the least bit simple. The case before us is difficult from a social perspective. Attempts to reach an agreement and to strike a compromise have all failed. This being the case, the solution must be found in a judicial ruling, which is quite unfortunate. Nevertheless, in President Landau’s words in Dawikat [3], at 4 “as judges, this is our role and our duty.”

The Result

106. The final result is as follows: a reasonable alternative to Bar-Ilan Street was found in all that concerns travel arrangements from one end of the city to the other. Under these circumstances, the partial closure of the street during prayer times on the Sabbath, as per the Minister’s decision, strikes an appropriate balance between freedom of movement and the Ultra-Orthodox local residents’ religious sensibilities and observant lifestyle.

 

Consequently, I would have rejected the petition and revoked the order nisi had the matter of the local secular residents and their families not arisen. Clearly, this presumes that three conditions are met. First, the alternative routes must be open on the Sabbath. Second, Bar-Ilan Street must remain open to traffic on the Sabbath during the hours when traffic is permitted, and the free-flow of traffic must not be hampered by violence. Third, Bar-Ilan Street should remain open to emergency and security vehicles even during prayer times.

The factual situation, however, is quite different. There is a problem with the traffic arrangements regarding the local secular residents, living around Bar-Ilan Street—they, their family and loved-ones, and all secular residents who visit their religious friends on the Sabbath. The interests of these individuals were not taken into account. Nor was a proper factual basis prepared. In this respect, the Minister of Transportation’s decision was made in violation of proper administrative procedure, as it failed to distinguish between the different sectors of the population residing in the areas in question. Thus, Bar-Ilan Street was partially closed to all traffic on the Sabbath. Under these circumstances, I suggest that the Court reject the petition in HCJ 5434/96 and make the orders nisi in HCJ 5016/96, 5025/96 and 5090/96 absolute, so as to strike down the Minister’s decision to partially close Bar-Ilan Street and return the matter to him. In his new decision, the Minister will take into account the interests of the local secular residents and their guests, as this judgment instructs. These

 

interests will be considered in accordance with an appropriate factual basis, according to the conditions set out in this judgment.

Under the circumstances, no order for costs shall be made. 

Justice T. Or

The Minister of Transportation decided to close a section of Jerusalem’s Bar-Ilan Street, measuring 1.2 km., to motor traffic during prayer times on Sabbaths and Jewish holidays. Was this decision lawful? This is the issue in the petitions before us.

Opening Comments

1.   My judgment was written prior to having had the opportunity to examine the judgment of my colleague, the President. As the President elaborated on the relevant facts and procedures, I will not revisit them. Initially, I only addressed those facts that were relevant to my position. However, after reading the President’s judgment, I felt it necessary to add three additional brief comments for the purpose of clarifying my position.

2.   To be quite frank, I would have preferred it had the various parties in the case at bar come to an arrangement, one that could have spared the involvement of this Court. This was the reason for our recommendation that a committee be set up in order to help the parties strike a compromise. To my dismay, there efforts were fruitless. As such, we must deal with a matter which is the subject of fierce public controversy.  Whichever way we decide, there will be those who will not be satisfied, and who will regard our decision as harmful.  No verdict is capable of satisfying everyone.  To the extent that we discharge our judicial duty to review the Minister of Transportation’s decision in accordance with the legal criteria used for assessing the legality of administrative decisions, criticism is to be expected from one side or the other.  As has become the norm, the criticism will be of the result reached by the Court, or by any one of the presiding judges. With the exception of a precious few, not many will be particularly interested in the legal reasoning underlying any of the opinions. We have grown accustomed to the fact that the rulings of this Court have sensitive political or social ramifications.

Even so, despite our awareness of these implications, we are not at liberty to refrain from deciding matters that demand the attention of this Court. As difficult as the task before us may be, and despite the criticism of those whose claims will be rejected, we have no alternative but to discharge our duty and rule according to the law applicable to the facts of the case, each judge according to his ability, understanding and conscience.

This having been said, let us proceed to the matter at bar.

Bar-Ilan Street

 

3. Bar-Ilan Street’s importance as a traffic artery is at the heart of our deliberations and is the key to resolving the matter. The road passing through Bar-Ilan Street connects the northeastern section of Jerusalem to the city's western section and with the entrance to the city. As is indicated in the brief submitted by the Traffic Controller, Bar-Ilan Street “begins at the entrance to the city, passes through the Ultra-Orthodox neighborhoods and ends in the neighborhoods located in the northern part of the city.” The road in question is wide, with two lanes in each direction. In certain sections, the road boasts three lanes.

The fact that the road in question is one of Jerusalem’s most central is undisputed. It serves both those entering Jerusalem and those living in the city’s western neighborhoods, such as Bet HaKerem, Kiryat Hayovel and Kiryat Menachem, allowing them to reach the northeastern part of the city.  The road also serves those in the northeast who wish to reach the western par of the city, or who wish to exit the city.

We do not have exact statistics regarding the percentage of the population served by this road. Even so, all agree that the neighborhoods served by it are large. These neighborhoods house tens of thousands of residents, if not more.

4.   Due to both its size and the significant population that it serves, the volume of traffic on the road is substantial. Mr. Michael Nackman, the manager of the City of Jerusalem’s traffic departments and engineering service, submitted specific numerical data relating to the flow of traffic. From his report, dated October 6, 1996, submitted to the Tzameret Committee, it emerges that on Sabbaths—from sunset on Friday to a little after sundown on Saturday—a significant number of vehicles use the road. The engineer’s data indicate that, between January 1, 1996 and March 30, 1996, the road was used by 13,216 vehicles on the Sabbath. This constitutes 27.1% of the average traffic during weekdays of the same period.  The statistics for the next three months are similar. During that period, the average number of vehicles driving on the road on the Sabbath was 13,714, which constituted 28% of the average number of cars driving on the road during that week.

I must further mention that surveys conducted over another period, between July 1, 1996 and July 27, 1996, showed an increase in the volume of traffic on weekdays, while the volume of traffic on the Sabbaths decreased. I do not think that this decrease in the volume of Sabbath traffic should be taken into account. As indicated by the Traffic Controller, Mr Langer, in his testimony before the Court on the August 15, 1996, “today, after a period of extended violence, there are many people who are afraid to use the road and in fact avoid using it…thus, the data of the last few Sabbaths is not relevant, since it is the product of pressures that do not reflect the regular traffic volume." To this I add that, for a number of years, serious controversy has surrounded Bar-Ilan Street and there are many people who avoid traveling on it on Sabbaths.  As a result, even the surveys conducted during the first half of 1996 do not accurately reflect the real potential volume of travel on the Sabbath. 

5. Thus, Bar-Ilan Street is a central traffic artery—a fact which equally holds true on the Sabbath. The road’s centrality as a traffic artery is also evidenced the letter the Central Traffic Controller, Mr. Langer, to the Mayor of Jerusalem. This letter will be cited below. Moreover, in his testimony before this Court, Mr. Langer also referred to Bar-Ilan Street as a central traffic artery, which connects important parts of Jerusalem and serves significant portions of the population, a large part of which uses the road on the Sabbath as well.

6.   We emphasized that Bar-Ilan Street is a central traffic artery. The road segment under discussion is surrounded by residential buildings on both sides.  For quite a few years now, these buildings house primarily religious and Ultra-Orthodox residents. This being the case, inner streets in the areas along Bar-Ilan Street are closed to traffic on the Sabbath and Jewish festivals.  Even so, and despite the local population, no restriction was ever imposed on Sabbath and holiday traffic on Bar-Ilan Street itself. The Minister of Transportation, however, recently decided to close the road to traffic on Sabbaths and festivals, during “prayer times.” The three petitions here attack this decision.

7.   Having described Bar-Ilan Street, we can now proceed to dealing with the petitions themselves. First, we will outline the normative framework within which the Minister adopted his decision. Then we shall decide whether the Minister’s decision was reasonable in accordance with the proper balance to be struck between the relevant considerations.

The Normative Framework—The Competent Authority

8. The legally competent authority in our case is the Traffic Controller. The Traffic Regulations-1961 identify the authority who has the jurisdiction to prescribe arrangements of the nature before us. Regulation 16 authorizes the Traffic Controller to determine the placement of traffic signs and road arrangements. Under the Regulation, the Traffic Controller is authorized:

              (1)   To determine the design of traffic signs, their types, sizes, colors, forms, meanings, manner of placement and signals;

(2) To determine traffic arrangements or to exempt from their use generally or in a particular case.

Moreover, under the Traffic Regulations, the Traffic Controller also serves as the Central Traffic Authority. In this regard, Regulation 1 provides:

Central Traffic Authority—The Traffic Controller appointed for any area in the State, or a person vested with the authority of the Central Traffic Authority, for the whole area of the state or a part thereof.

Regulation 17 enumerates the Central Traffic Authority’s powers. Under this regulation, the Central Traffic Authority is permitted to allocate powers to the Local Traffic Authority to determine traffic arrangements. If these regulations are not complied with, the Central Traffic Authority is empowered to implement them itself.  The following is language of the Regulation:

17. (a) The Central Traffic Authority is permitted to direct the Local Traffic Authority regarding the determination of traffic arrangements, their alteration, termination, and maintenance.

(b)        Where instructions as stated in subsection (a) are given, and the Local Traffic Authority does not comply therewith, the Central Traffic Authority may set out such traffic arrangements, which shall be regarded as if though they had been established, indicated, activated or terminated by the Local Traffic Authority.

Who is the said Local Traffic Authority? The notice regarding the appointment of traffic authorities (Y.P. 5730-2281) provides that the head of the Municipal Authority will function as the Local Traffic Authority. The bounds of the Local Traffic Authority’s powers are set out in Regulation 18 of the Traffic Regulations, and includes posting traffic signs and indicators. As indicated in section 18(b), there are certain arrangements that the Local Traffic Authority is only empowered to determine “when set out, in writing, by the Central Traffic Authority.”

 In accordance with the Traffic Controller’s order, the Central Traffic Authority determined that its local counterpart would be permitted to determine traffic arrangements under section 18(b) in the Jerusalem area, with the exception of “main thoroughfares and the city center.” As it is undisputed that Bar-Ilan Street corresponds to the definition of a “main thoroughfare,” the authority to determine the traffic arrangements in the location is vested in the Traffic Controller.

The Normative Framework—The Minister of Transportation in his Capacity as Traffic Controller

9.   As we have seen, the Traffic Controller is the statutory authority charged with making decisions regarding Bar-Ilan Street. These petitions here were directed against the Controller’s decision to close Bar-Ilan Street during certain hours on Sabbaths and Jewish festivals, for a four month trial period.

After the hearings of the petitions began and the orders nisi and interim orders against the Traffic Controller were issued, the Minister of Transportation decided to exercise the powers vested in him under section 42 of the Basic Law: The Government, and to assume the Traffic Controller’s powers regarding the issues under discussion here. The Minister explained his decision in section 10 of his additional affidavit. In the Minister’s own words:

In light of the Court’s decision, which linked the closure of Bar-Ilan Street to the setting of comprehensive policy regarding Sabbath traffic in Jerusalem and across the country—policy predicated on a social covenant between the various sectors of the population—and bearing in mind that in accordance with that decision I established a public committee, that made recommendations to me regarding the broad issues involved, I have seen it fit to make a linkage between the various aspects relating to road closures. It is for this reason only, and until the entire issue is resolved, that I have decided to arrogate the Traffic Controller’s authority in all matters relating to the decision to close Bar-Ilan Street, under Regulations 16 and 17 of the Traffic Regulations. 

In exercising this authority, the Minister decided that: 

Bar-Ilan Street will be closed to traffic on the Sabbath and Jewish festivals during prayer times, in accordance with the Sturm Committee’s recommendation.  For as long as the road is closed, Golda Meir Boulevard (The Ramot Road) shall remain open, as will the entrances to the city.  A lane for private vehicles shall also remain open on Jaffa St, on Sabbaths and Jewish festivals.

The closing times shall be from one and three quarter hours before the entry of the Sabbath, from one and three quarter hours prior to the termination of the Sabbath and between the hours 07.30 - 11.30 during the Sabbath day”.

The terms “Bar-Ilan Street” refer to both Bar-Ilan and Yeremiyahu roads, including the section stretching from the Shamgar intersection to the Shmuel HaNavi intersection.

10. While the personal identity of the empowered individual changed when the Minister assumed the powers of the Traffic Controller, the nature of the authority and its scope remained the same.  Clearly, there is a difference between the Minister and the Traffic Controller. His experience is different and his perspectives are also liable to be different. This, however, does not change the powers that the Minister assumed from the Controller. Indeed, the normative context relevant to the exercise of these powers remains unaffected, as does the purpose for which the authority was initially bestowed.  Similarly, the framework of considerations relating to the exercise of the authority remain unchanged. See HCJ 5277/96 Hod Matechet Ltd. v. Minister of Finance [66], at 867. The only thing that changes is the personal identity of the entity in whom the authority is vested.

So notes Professor Zamir in his book, 2 The Administrative Authority 586-87 [91], when discussing an example of the Minister of Transportation appropriating the Traffic Controller’s authority.  On this subject, Professor Zamir writes:

In my opinion, it is preferable, both academically and practically, to say that the assumption of authority, as well as its delegation, does not transfer authority from one organ to another. Instead, it merely adds another organ to the administrative authority. The Traffic Controller is the natural locus where these powers vest. It is there that the authority in question is surrounded by all of the pertinent considerations, related to the essence of the Traffic Controller’s function and to special provisions relating to the Controller’s relationships with other authorities. Consequently, there is no justification for uprooting the authority from its natural locus and transferring it to the "foreign environment" of a different authority...

Likewise, difficult problems are liable to arise between the two authorities involved were the assumption of authority to have the effect of transferring powers from one authority to the other.  For instance, is the assuming authority...entitled to strike down or alter a decision made by the original authority? This question arises because, generally, a decision may only be struck down or altered by the same authority that adopted it.

Prof. Zamir further notes that this difficulty may be resolved by presuming that a Minister who assumes the powers of an administrative authority embodies that statutory authority. Thus, “when the Minister of Transportation assumes and exercises the Traffic Controller’s authority, he is regarded as the Traffic Controller. The Minister is permitted to do anything that the Controller is empowered to do, and he is under the same duties as the Controller.” Id. I fully concur with these words which, in my opinion, are appropriate for the issue before us. They suggest that, in order to ascertain the legality of the Minister’s decision’s here, we must examine the framework of considerations that the Traffic Controller, as a statutory authority, was permitted to consider.

11. Another point must be made. Our concern is with the Minister of Transportation’s decision, in his capacity as Traffic Controller. The Minister is a religious person. He was elected to serve as a Member of Knesset on behalf of a party whose goals are religious. Naturally, this fact is liable to influence the policy that the Minister adopts.

Nevertheless, this fact must not be allowed to alter our assessment of his decision’s legal validity. The issue before the Court is whether the Minister made reasonable use of the authority which he appropriated from the Traffic Controller. Issues regarding the exercise of statutory authority are not decided by reference to the person who holds the position. Rather, any assessment of reasonableness is normative, and focuses on whether an act is an act that a reasonable authority, responsible for that particular matter, would be permitted to take. The issue here is whether the decision reasonably balances between the values at stake.  The substance of these values and their relative weight are not affected by the personal identity of the individual exercising the authority. As Justice Barak stated in HCJ 389/80 supra. [30], at 439-40:

Unreasonableness is measured in accordance with the standard of the reasonable person. This is an objective test. The question is not what the authority actually did, but rather that which it ought to have done.  In this context, the reasonable person is the reasonable civil servant, in the place and position of the civil servant who actually made the decision at issue.  The question is, therefore, whether a reasonable civil servant, in the situation of the civil servant who adopted a particular decision, would have likely adopted the decision in question, under the circumstances....

The administrative authority is obviously not identical to the actual clerk whose decision is being reviewed, despite the significant degree of “subjectification” of the “objective” authority, which does not operate in a vacuum, but rather under concrete circumstances.

Justice Barak revisited this point in Ganor [16]:

Reasonableness is not a personal matter, but a substantive one. It is not the reasonableness of he who actually adopted the decision that renders the decision reasonable, but rather the reasonableness of the decision itself that allows the person adopting it to be deemed reasonable.

This being the case, the Minister’s own worldview should not influence our judicial review. The judicial review is, first and foremost, forged from the considerations that the Traffic Controller ought to have taken into account in exercising his authority in the matter before us. With these preliminary remarks, I shall now proceed to the examination of these considerations.

The Normative Framework—The Traffic Controller's Discretion

12. In this case, we are dealing with the Traffic Controller’s authority in his capacity as the Central Traffic Authority. This authority relates to the proper regulation of road traffic, indicated by the specific definition of the term “signpost,” as it appears in the Traffic Regulations. The term is defined as “any indication, sign or signs, including a traffic light, as determined by the Central Traffic Authority, which was positioned or posted with the Traffic Authority’s authorization or consent in order to regulate road traffic or in order to warn or guide pedestrians.”

The basic purpose that these signs are intended to serve is the regulation of road traffic. The regulation of traffic requires extensive technical expertise. See HCJ 398/79 Abdalla v. Mayor of Nazareth [67], at 526. First and foremost, it involves the ability to make professional decisions which will create a well organized, balanced transportation system, one that guarantees the optimal levels of efficient, speedy and safe traffic movement.  The central consideration here must be ensuring safe and efficient transportation. This is the central consideration that the Traffic Authority must take into account when exercising its powers. 

This Court pointed this out in Abdalla, supra. [67]. There, in deliberating the legality of a decision of the Traffic Authority, the Court held, Id. at 525, that “in positioning signs, the Authority must be guided exclusively by transportation considerations.” The Court clarified the matter of transportation considerations:

The matter of signs, including their posting and their removal, are not static issues. Rather, their change is a function of what is required in order to fulfill the objectives which the Traffic Ordinance is designed to regulate. Thus, what may have been suitable yesterday in terms of the requirements of traffic arrangements in a particular area may no longer be appropriate in light of the prevailing circumstances, and may be even less suited to tomorrow’s needs, given the changes in the numbers of cars, the character of the area, population density and other such changes, occurring on a daily basis.

See also HCJ 379/71 Levy v. The Municipality of Petach-Tikva [68], at 788; HCJ  112/88  The Local Committee for Planning and  Building,  Ramat-Gan v. The  District  Committee  for  Planning  and Building,   Tel-Aviv District [69]

Indeed, the Minister of Transportation himself spoke similarly in a Knesset debate (session number ten, of 10.7.1996, at 433), stating:

The considerations guiding the Traffic Controller in deciding to close a given street must, first and foremost, be professional, traffic-related considerations.

13. This Court has emphasized that the central considerations of the Traffic Authority’s powers must be professional and traffic-related. This does not, however, imply that the Authority is precluded from taking more general considerations, which touch on the influence of road-traffic on other interests, into account. Indeed, the broad administrative legal rule remains that “the fact that the executive branch takes general public considerations into account, even when these stray from the specific area it is charged with, does not invalidate the decision.” See HCJ 612/81 supra. [13], at 301. This broad principle is equally applicable to the Traffic Controller. Thus, the Court held that, in approving bus lines, the Controller need not limit his considerations to transportation factors—he may also take into account the public interest in the efficient use of public funds. In another case, HCJ 1869/95 Gasoline Import Company v. Minister of Transportation [70],     the Court held that in prescribing regulations for the transport of petrol, the Controller may also consider factors related to free competition. Id. at 569-70.

This general principle also relates to the feelings of the religious public, which are legitimate considerations for the Traffic Controller to take into account. Thus, for instance, the League [1] case dealt with the Traffic Authority’s decision to close part of the road adjacent to the “Yeshurun” Synagogue on Sabbaths and Jewish holiday, since the worshippers were disturbed by traffic. In its decision, the Court ruled, Id. at 2668, that it was permitted to take religious feelings into account:

There can be no doubt that the respondent was taking into account a religious interest in considering the fact that motor traffic on the streets, on festivals and Sabbaths, disturbs the concentration of the worshippers of the Yeshurun synagogue, preventing them from praying comfortably. There is no fault in that—just as there is no fault in considering cultural, commercial, or health interests, provided that they affect a significant part of the public.

A similar approach was taken in Baruch [2], a case dealing with the Traffic Authority’s decision to close part of Hashomer street in Bnei Brak to motor traffic on Sabbaths and holidays. In that instance, Acting President Landau ruled that the Traffic Controller was permitted to take the feelings of the local population into account and further held that “ensuring the Sabbath rest, in accordance with the lifestyle of the interested public, is within the Traffic Controller’s authority to regulate road-traffic.” Id.

I will revisit these two judgments and discuss them at length below.

14. In this context, we should mention that, although religious considerations and the matter of religious sensitivities are legitimate factors, they cannot become the central element in the Traffic Controller’s decision. The Controller should, above all, consider transportation-related and professional factors. Other, more general factors, including consideration of the observant public’s religious sensibilities, are peripheral and cannot prevail over transportation considerations. The “religious” consideration, being peripheral, cannot become the central factor in the Controller’s decisions regarding the regulation of traffic. Thus, as more importance is accorded to transportation-related considerations pulling in one direction, proportionately less weight will be accorded to religious sensitivities pulling in the opposite direction.

This Court adopted this line of thought as far back as Lazerovitz [5]. In Lazerovitz [5], the Court held that it was within the Food Controller’s authority to “weigh many factors, including economic, financial, sanitary, psychological and, in certain cases, even religious factors.” Id. at p.55. The Court, however, qualified these comments, stating that these factors must be limited to cases where the actions of the Food Controller were “seriously and faithfully geared towards fulfilling his legitimate functions as a Food Controller regulating food consumption, in which case there was no fault in incidentally taking religious considerations into account." Id. at 55-56.

From this it is clear that professional considerations must be the primary considerations guiding the Traffic Controller. General considerations of religious needs are peripheral and cannot overshadow the specific considerations central to the powers of an administrative authority. We rendered a similar ruling in HCJ 1064/94 supra,.[52]. The issue there concerned Regulation 273 of the Traffic Regulations. That regulation dealt with the certification of licensing centers, that were to check vehicles for their mandatory annual license test.  In that context, the Court said, Id. at 817:

We may identify two central factors which the respondents should have considered. The first is road safety—the maintenance of vehicles in proper working order. The second involves encouraging free enterprise.

In weighing these factors, the Court granted greater weight to the purpose underlying the regulation. There, this purpose was guaranteeing the safety of motor vehicles. This was the central consideration, forming the very kernel of the grant of authority. Considerations relating to free enterprise were permitted, but only as incidental to the central consideration. In the event of a conflict between the two considerations, the specific consideration would prevail over the general desire to encourage free enterprise.

This is also the rule here. In other words, while the Traffic Controller was permitted to take the religious sensitivities of the observant community into account, this consideration cannot form the basis of his decision. Instead, the Controller’s considerations must be primarily based on transportation considerations.

15. We have examined the framework in which the Controller must exercise his discretion. We have seen that the Controller is not limited to transportation considerations, and may consider general values which are affected by his decisions. For our purposes, three central values demand our attention—the freedom of movement, the freedom from religion of those who wish to freely travel on the Sabbath, and the right of the religious public not to have their religious sensibilities offended. I will briefly relate to each of these values.

Freedom from Religion

16. “Every person in Israel enjoys freedom of conscience, belief, religion and worship. This freedom is guaranteed to every individual in an enlightened democratic society, and is therefore guaranteed to every person in Israel. This constitutes one of the basic principles upon which the State of Israel was founded.” HCJ 292/83 [47], at 454. The public’s right to freedom from religion is also included within the ambit of the freedom of religion and conscience. “It is a supreme principle in Israel, based on both the rule of law and this Court’s rulings, that Israel’s citizens and its residents are guaranteed freedom of religion and freedom from religion.” HCJ 3872/93 Meatrael [6], at 506 (Cheshin, J.) I noted, in same case, that “the notion of freedom of religion, on the one hand, and freedom of conscience, including freedom from religion, on the other, is expressed by the phrase “each man shall live by his faith.” Cf. Habbakuk 2:4 [111] See Meatrael [6], at 197. Justice Berenson made reference to this same principle in HCJ 287/69 supra. [53], at 364:

It is true that people must respect each other’s feelings, including religious sensibilities and beliefs and, wherever possible, refrain from infringing them. This is a supreme moral imperative, in the absence of which organized community life would not be possible. But this imperative applies to all. Just as Reuben must respect Simon’s religious feelings, so too must Simon respect Reuben’s free way of life, and refrain from attempting to force his ideas and beliefs on his neighbor.

In a similar vein, I wrote in Meatrael [6], at 501:

It seems to me that in striking the delicate balance between freedom of religion and freedom from religion, it must be properly remembered that the mere fact that a certain segment of the population holds particular beliefs and opinions and has different behavioral patterns does not warrant preventing them from continuing to think, believe and behave in accordance with those different beliefs, patterns and customs, even if they offend another section of the public.

Closing a road to traffic on the Sabbath is, to a certain extent, religious coercion of the secular population, who is not observant of the Sabbath. A road closure prevents motorists from using the road of their choice. It may prevent them from reaching the home of a local resident or bar them access to the road’s speed and convenience. Justice Vitkon emphasized this point in Baruch [2], at 166:

I am distressed by the trouble caused to the public that does not observe religious commandments or does not see the use of vehicles as transgressing the sanctity of the Sabbath. I am convinced that closing the road constitutes religious coercion with respect to that population.

Obviously, I agree that freedom from religion is neither the single nor the exclusive interest at stake. Indeed, freedom from religion is not absolute and must be balanced against other values, with which it may conflict. To this effect, my colleague, Justice Barak, stated in Ressler  [33], at 501, that  “the need to guarantee freedom of religion and prevent religious coercion does not preclude us from considering the needs of the religious population.” In a similar vein, in HCJ 6111/94 Guardians of the Tradition v. Committee of Chief Rabbis [71], at 105-06, I noted that:

A person's right to freedom of conscience, including freedom from religion, is not absolute and, at times, may be overridden by other considerations…

Quite often, a conflict may arise between those wishing to live a secular lifestyle and others desirous of maintaining a religious way of life. 

As such, we must examine other interests which bear on the dispute here.

Freedom of Movement

17. In Israel, freedom of movement is guaranteed as a basic right. See HCJ 672/87 supra. [54], at 709 (Barak, J.) It includes each and every person’s right to exit the State. See Cr. Motion 6654/93 supra. [55], at  293. It also encompasses a person’s freedom to move freely throughout and across the State of Israel. See HCJ 153/83 supra.[22], at 401. As such, this freedom also includes every individual’s freedom to travel “freely in areas intended primarily or exclusively for traffic and transit.” PL. Cr. A 6795/93 Aggadi v. The State of Israel [72], at 701. This right is essential to individual self actualization. It has not lost any of its significance in modern times.  Of late, we have been witness to the development of electronic modes of communication that “shorten” the distance between places and allow people to perform tasks from their homes, for which, in the past, they had to leave their place of residence. This includes both work and academic studies. As the Chief Justice of the American Supreme Court noted, freedom of movement “may be as close to the heart of the individual as the choice of what he eats, or wears, or reads.” See Kent v. Dulles, 357 U.S. 116, 126 (1958) [85].

Justice Berenson, addressing the matter of motor traffic on Sabbaths and festivals in CA 217/68 supra. [12], at 363, also insisted on the fundamental nature of freedom of movement:

The use of private vehicles is becoming increasingly indispensable for maintaining the economy and meeting the social and cultural needs of both individuals and society, particularly in light of the lack of public transportation on Sabbaths and holidays.  

Bar-Ilan Street’s closure to traffic constitutes an infringement of this basic freedom, as Acting President Landau pointed out in Baruch [2] supra., at 163:

Halting traffic because of the wishes of the Ultra-Orthodox infringes the freedom of movement of those interested in using their vehicle as they wish on Sabbaths and holidays.

 This having been said, this right, like freedom from religion, is not absolute. For example, it may retreat in the face of the freedom to demonstrate, as Justice Barak clarified in HCJ 148/79 supra. [24], at 177-78.

Harm to the Sensibilities of the Religious Public 

18. The harm caused to the feelings of the religious public residing on and around to Bar-Ilan Street, must also be taken into account. Of course, “only the Knesset can impose the observance of religious commandments. Not only must this authority to coerce be prescribed by primary legislation, it must also be specific and explicit.” Meatrael, supra [6] at 507 (Cheshin, J.). This having been said, "The observant are entitled to and worthy of protection, as is any other group in Israel, and freedom of religion gives rise to the need for such protection.” Id. As a result, religious feelings are also entitled to protection. Our jurisprudence recognizes the need to safeguard these feelings as part of the public order, in its broad sense, as held by President Barak in HCJ 14/86 supra. [35], at 430:

"Public order" is a broad concept, which is difficult to define, and whose definition varies depending on the context in which it is defined. In the context at bar, public order includes threatening the state’s existence, harming the democratic regime, public peace, morals, religious sensibilities, a person’s reputation, and fair judicial proceedings, as well as other matters that touch on the issue of public order.

This consideration also served as a basis for the Court’s decision in Baruch, supra. [2], dealing with the decision to close Hashomer street on Sabbaths and Jewish holidays. It therefore follows that religious feelings are a factor that an administrative authority may take into account. Nevertheless, our case law remains apprehensive of this element. See HCJ 230/73 supra. [10], at 119 (Eztioni, J.).

The Ultra-Orthodox residents living in close proximity to Bar-Ilan Street argue that motor traffic on that street on the Sabbath and festivals offends their religious sensibilities. I do not dispute that these individuals are in fact offended as a result of the stark contrast between their Ultra-Orthodox lifestyle and traffic on the Sabbath. It reflects the local residents’ profound belief in the sanctity of the Sabbath and their commitment to this idea. We must not forget that “religious perspectives are deeply intertwined with each individual’s conscience.” HCJ 806/88 supra. [9], at 39. Similarly, the harm caused to the Ultra-Orthodox public reflects the fact that members of that population residing on Bar-Ilan Street are a “captive audience” of sorts, compelled to witness the desecration of the Sabbath against their will. As a result, in principle, the right of the Ultra-Orthodox public not to be offended is worthy of consideration.

Understandably, the protection extended to religious feelings is not a value that developed in a vacuum. Nor is it an absolute value. The protection accorded this value must take into account the existence of other circumstances. In the final analysis, it is a question of balance, the subject to which we now turn.

Balance 

19. Balancing between different values is often difficult, given the difficulty involved in identifying the proper weight that must attach to each individual value. At this juncture, we shall recall that, in striking the appropriate balance, it is incumbent upon us to consider the fact that “to a certain extent, a democratic society recognizes harm to religious feelings as an injury. Only in this manner will it be possible for different religious viewpoints to coexist. ” See HCJ 806/88 supra. [9] (Barak, J.)

The question is therefore whether the Minister’s decision reflects a reasonable balance between the relevant considerations. We shall recall that “reasonableness refers to weighing all the relevant considerations and attaching the proper weight.” Ganor supra. [16], at 513. This and more: “the very fact that the administrative authority took all the relevant considerations, and only those, into account is not sufficient to ensure the decision’s reasonableness. Even a decision that took all the relevant considerations into account shall be deemed unreasonable if it failed to attach the proper weight to the various factors.” HCJ 4267/93 A.M.I.T.I- Citizens for Efficient Government v. The Prime Minister [73], at 464.

From these statements, as well as from our analysis above, we see that, in reviewing the Minister’s decision, the Court must examine whether the solution chosen confers the appropriate weight on the central factor of transportation, which constitutes the fundamental normative consideration relevant to the arrangement before us.

In addition, it is incumbent upon us to evaluate whether the chosen solution is the product of a proper balance between the interests at stake. In so doing, we must examine whether the solution is a balanced one, capable of preventing infringements on certain interests, while ensuring that this does not come at the expense of interests lying on the other side of the debate. Thus, it is necessary to examine whether the solution adopted both prevents such inequality as would result from preferring one interest over the other, as “considering the feelings of A, at B’s expense, is tantamount to inequality: A will continue living the lifestyle of his choice, while B will be compelled to live in a manner that goes against his beliefs, in other words, he will be forced to endure religious coercion.” Meatrael supra. [6], at 501. In the final analysis, we must recall that “the matter is one that involves balancing legitimate interests related to closing or opening the street in question.” Baruch supra. [2], at 166-67 (Vitkon, J.).

The issue to which I will now turn is whether the Minister’s decision strikes the requisite balance.

20. In evaluating the solution for which the Minister opted, I feel that three fundamental matters regarding the reasonableness of the Minister’s decision must be emphasized. The first is the character and importance of Bar-Ilan Street as a main traffic route. Second, we must examine the harm to the local secular residents and to the rest of the public served by Bar-Ilan Street on the Sabbath. Third, we must examine the lack of any change in the objective data that would justify a change in a long-standing arrangement.

To my mind, these factors were not given the weight that they deserve. I shall now address them.

21. The road’s character and importance. Above, we dwelt at great length on the nature of Bar-Ilan Street. We saw that the street is public property, which remains at the public’s disposal. It is a road accommodating a significant amount of vehicles, including on Sabbaths, despite recent violent incidents disrupting the free-flow of traffic in the area. We have also seen that this road serves the population inhabiting Jerusalem’s largest neighborhoods. In effect, the street is the principal link between these neighborhoods. As such, the road is the main road for all those entering the city from outside, whose destination is one of Jerusalem’s northeastern neighborhoods. For some of these people, the Sabbath is the only day of the week when it is possible to visit Israel’s capital. It is a main road, constituting a chief traffic artery, not a local inner street. As the Traffic Controller suggested in his letter to the Minister of Transportation, “the Ministry of Transportation considers Bar-Ilan Street to be a main traffic artery, connecting Jerusalem’s northern neighborhoods to the city’s center and south, every day of the week.”

22. This fact is of utmost importance. In balancing, significant weight attaches to the issue of whether we are dealing with the private or public domain:

The interests of the observant population’s are quite weighty, perhaps even determinative, within the privacy of their own homes.  However, the further one travels from his home, and the closer one is to touching the public domain—or on  another’s private domain—or when one’s request involves his fellows’ rights, so too will the strength of one’s interests be weakened, as it will be balanced against the rights of his neighbor, in the latter’s public or private realm.

Meatrael supra. [6] at 508 (Cheshin, J.). Justice Cheshin clarified that “protection may be extended to the observant individual’s ‘extended’ household.” Id. However, as far as we broaden the scope of the “private domain,” it would still not include a public road like Bar-Ilan. For our purposes, we are not dealing with an inner street, connecting other local neighborhood streets. Instead, we are dealing with a main street, serving a very large population and a significant number of vehicles daily, including on the Sabbath. A road such as this cannot be considered the “private” domain of the community residing in its vicinity, nor can this community dictate its use. It belongs to the public at large. As such, it cannot be expropriated from the public, either in whole or in part.

23. This was the policy adopted by the Ministry of Transportation. We have already seen that the Ministry has decided that traffic arrangements on Bar-Ilan Street and similar streets shall be determined by the Traffic Controller, not the Local Council. This teaches us that roads such as these are not considered to be part of the private domain, even broadly defined. Rather, they are deemed to be public property. Consequently, a national traffic authority, rather then a local one, was appointed to preside over it.

Moreover, from the outset, the Ministry’s policy regarding traffic arrangements reflected this distinction between the private and public realm, as implied from the Traffic Controller’s statements at the meeting held on August 15, 1996. On that occasion, the Controller addressed the policy of Sabbath street closures, asserting: “to the best of my knowledge, no other traffic arteries are closed…as a rule, traffic arteries must remain open. The act of closing a traffic artery is most drastic.” See page 12 of the meeting’s protocol.

I am convinced that this policy is appropriate. In my opinion, it reflects the proper balance between the needs of all communities. The neighborhood's inner or side streets, situated alongside Bar-Ilan, are closed to traffic on Sabbaths and holidays throughout the day. This is appropriate. The population residing in the vicinity of these streets is essentially Ultra-Orthodox. Under these circumstances, the value of preventing offensive to religious feelings prevails. In this manner, the religious community’s needs, its sensibilities and lifestyle are to be taken into account. Closing these side streets, while allowing the main street—on which many wish to travel on Sabbaths—to remain open, is a compromise between the needs of Jerusalem’s secular community, including the needs of those coming to visit the capital from every corner of the country, and the needs of Bar-Ilan’s Ultra-Orthodox public. We must not forget that “in a society that includes those of different faiths, as well as those with no faith at all, it is only appropriate that mutual understanding reign. A pluralistic society such as ours requires mutual tolerance. A compromise is necessary.” HCJ 6111/94 supra. [71], at 105. The emphasis is on the mutuality of the tolerance. With all the consideration that the religious feelings of the local residents warrant, this factor is not the only one to be taken into account; a compromise is necessary. It is also necessary that there be understanding and tolerance on the part of the Ultra-Orthodox for the needs of those who does not observe the Sabbath and for whom the use of Bar-Ilan Street is essential.

Such a compromise reflects the fact that consideration of the needs of the Ultra-Orthodox community has its limits. These limits are premised on the imperative to also consider the needs of another community, one which shares Jerusalem with the Ultra-Orthodox. Consideration of these needs demands that main streets, like Bar-Ilan, remain open. In this manner, the wishes of the observant community are properly recognized, while the nature of the road in question—an important traffic artery—is also taken into account.

To my mind, and in this I disagree with my colleague, the President, this balance in no way deviates from the “threshold of tolerance” required of the Ultra-Orthodox population in a pluralistic and democratic society such as ours. With no disrespect intended towards the genuineness of the latter’s feelings, the proper balance between the interests does not allow the harm to these feelings to outweigh traffic considerations and the interest in keeping Bar-Ilan Street open to the public at large. This and more: harm to religious feelings cannot prevail over every individual’s basic freedom to travel freely in the public realm, in accordance with his wishes, where the place in question was intended for public use.

24. In order to highlight the street’s importance, it is appropriate to revisit the Traffic Controller’s statements in his letter to the Mayor of Jerusalem, Mr. Olmert, dated November 29, 1994. The letter in question, as noted, was written on the heels of “media publications and incidents on the street,” with the intention that discussions regarding the proposed closure of Bar-Ilan Street to traffic on Sabbaths take place. The Controller was aware of the Ultra-Orthodox demands to close the street to traffic on Sabbaths. In this context, the Controller suspected that Jerusalem’s City Council would decide to close the street, which would require his approval. The Controller decided to pre-empt such an attempt and apprise Mr. Olmert of his position. The following are the contents of the Controller’s letter:

The Ministry of Transportation considers Bar-Ilan Street to be a main traffic artery, connecting Jerusalem’s northern neighborhoods to the city’s center and south, every day of the week. It would be unthinkable to close this route to traffic on the Sabbath or on any other day. Arrangements to close streets on the Sabbath are only feasible on local streets, following a careful examination, and certainly not on important, central arteries.

This is a clear position, premised on the importance of Bar-Ilan Street.

After the Traffic Controller wrote to the Mayor and received a response, he revisited the matter in a second letter to the Mayor dated January, 3 1995. In this second letter, he highlighted the need to secure the Central Traffic Authority’s consent to Bar-Ilan Street’s closure:

The following is a response to your letter attached herein.

In July of 1992, in accordance with regulation 18(b) of the Traffic Regulations-1961, the Central Traffic Authority determined the areas that fell within the jurisdiction of the City of Jerusalem, including the authority of the Local Traffic Authority to prescribe traffic arrangements.

A map marking the roads that were removed from the Local Traffic Authority’s jurisdiction, by virtue of the same Regulation, is attached to this notice. Bar-Ilan Street is among those roads removed from the Local Authority’s jurisdiction.

As such, Bar-Ilan Street is subject to the provisions of Regulation 18(c) of the Traffic Regulations-1961. Any traffic arrangement touching on Bar-Ilan, particularly one envisioning its closure, must be approved by the Central Traffic Authority.

As I have already stated in my letter dated November 29, 1994, I will not agree to Bar-Ilan Street’s closure on Sabbaths and holidays, or on any other day.

These two letters set forth a clear and unequivocal position, according to which the Traffic Controller would not consent to the closure, as required by Regulation 18(c) of the Traffic Regulations. 

During oral arguments August 15, 1996, the Traffic Controller was questioned regarding the change in his position, after having decided to close Bar-Ilan Street at certain hours on Sabbaths and Jewish holidays. He did not reiterate Bar-Ilan’s importance. Rather, he stated that, following a conversation with the Minister of Transportation, it became clear to him that his original position failed to give proper weight to the harm that Sabbath traffic on Bar-Ilan Street caused the local residents. I will not expand on the impression that the Controller’s words made on this Court. Suffice it to say that his statements were not convincing. Indeed, his views regarding Bar-Ilan’s importance on Sabbaths and festivals—in terms of transportation—did not change. As noted in his letter dated November 29, 1994, the Controller was already well aware of the harm caused to the religious sensibilities of the local Ultra-Orthodox residents. It seems that the only factor that precipitated the Controller’s sudden decision to consent to Bar-Ilan’s partial closure on Sabbaths was his willingness to conform to the opinion of his supervisor, the Minister of Transportation. There was no change in the relevant considerations that would justify such a change in position.

25. The Local Secular Population. No one disagrees that the majority of residents living on and around Bar-Ilan Street are religious. Likewise, all agree that a local secular population does exist, whereas detailed data as to its precise size has not been set forth. Nevertheless, it is clear that its size is not negligible.

Petition HCJ 5090/96, brought in part by local secular residents, argues that “numerous secular residents still live in the area, including many non-observant elderly couples who, on Sabbaths and festivals, are visited by their children,” see para. 15 of the brief. Furthermore, this petition submitted, see para. 26, that “many of the local residents, being elderly, are not able to walk long distances and will therefore prefer to stay home [if Bar-Ilan is closed-off]. This would be tantamount to de facto house arrest for all those who do not believe that using one’s vehicle on the Sabbath constitutes a desecration of the Sabbath."

For our purposes, it is sufficient to presume that closing Bar-Ilan Street on Sabbaths and Jewish holidays will not only cut off traffic from one end of the city to the other, but will also block passage to those who, residing on and around Bar-Ilan Street, use the road to reach their homes and those of their loved ones.

26. Petition 5090/96 describes the distress experienced by two of the secular residents living in the area. Petitioner number three, Mrs. Avinezer, resides on Tzefania Street, a street adjacent to Bar-Ilan, and works at Hadassa-Ein Karem Hospital. Her work requires her to be on standby in case of a terrorist attack. As most of Tzefania Street's residents are Ultra-Orthodox, the street is closed on Sabbath, and petitioner number three, on weekends, is compelled to park her vehicle approximately three hundred meters from her home. Closing Bar-Ilan Street as well would force petitioner to park her vehicle over a kilometer away from her house.

Petitioner contends that her work sometimes requires her to reach the hospital as soon as possible. Thus, the petitioner fears that compelling her to park at a significant distance from her home “will prevent her from continuing in her position as terrorist attack standby personnel, while reducing the hospital’s willingness to employ her for this important position.”

Moreover, the petitioner fears that, in addition to interfering with her work, Bar-Ilan’s closure will disrupt her personal life as well. The petitioner is a single woman who eats her Friday night dinner and Sabbath lunch at her brother’s family’s home in Jerusalem.  Were she compelled to park her car about a kilometer away from her residence, as per the Minister’s proposed plan, she argues that she would have to “march over five kilometers on Sabbaths in order to continue with her regular routine…this would be particularly difficult in seasons where the weather would render this even more difficult.”

27. Let us proceed to the case of petitioner number four in HCJ 5090/96, Mr. Gabay. Mr. Gabay is a disabled IDF veteran, who has difficulty walking. His parents live on David Street, which crosses Bar-Ilan Street, in the heart of the area closed to traffic. He and his family customarily visit them, at times on Fridays and other time on the Sabbath, during the hours that the Minister decided to close the street to traffic. Petitioner argues that enforcing this arrangement will prevent him “from seeing his parents on Sabbaths and holidays, or, in the alternative, will make it quite difficult for them to meet, causing severe physical and emotional suffering.” See para. 24 of the petition.

28. As noted, the Court was not presented with any detailed information regarding the number of additional secular residents living in the area, and the manner in which the Minister’s decision is liable to affect them and their families. It was argued that a significant number of the secular residents were afraid to voice their opinions. These examples here, in and of themselves, point to the concrete possibility that harm will come to these residents. They point to a serious threat to their quality of life, to their ability to properly lead their lives and perhaps even to their occupations. It would not be inaccurate to say that the above harm is made particularly severe by the fact that these petitioners have not been given the option to be heard. According to the material before the Court, the Minister failed to turn his attention to their plight.

29. It seems to me that this failure to address the issues pertaining to the secular residents constitutes a defect in the Minister’s decision. Indeed, the positions of petitioners three and four, both as individuals and as members of the relevant group to which they belong, were not given any weight.

  I am therefore convinced that proper weight, and indeed, to my mind, significant weight, should have been given to the issues raised by the secular residents living on and around Bar-Ilan Street. This, however, was not done. There is no mention of the magnitude of this problem in either of the respondents’ briefs.

The only response found in these briefs is that the relevant balance is to be struck between two communities. I do not find this response convincing. It implies that Bar-Ilan’s secular residents form part of a more or less homogenous group, whose needs were taken into account by the Minister. This however is not the case. In his decision, the Minister considered the situation of the secular members of the public who use Bar-Ilan Street in order to get from one end of Jerusalem to the other and the alternatives available to them. He did not, however, distinguish between the secular public generally and the local secular residents, living on and around Bar-Ilan Street. The latter have additional, specific needs. Moreover, the harm to these residents is intensified in light of the fact that, due to the closure of most of the streets adjacent to it, Bar-Ilan is the only road open to traffic on Sabbaths and holidays, in the area in question.

Nevertheless, the fact that the street will be closed only partially, and only during particular hours that are specified in advance, can be seen as a mitigating factor. This is to say that local residents, and those wishing to reach them, have but to plan in advance. This however does not solve the problems associated with unanticipated trips, which are at times necessary. Nor does it solve the problem of the complications to the Sabbath routines of the local secular residents, and it fails to mitigate the fact that their freedom of movement is severely infringed as a result of the Minister’s decision.

30. The Absence of Any Change in the Original Conditions. Acting President, Justice Landau pointed out in Baruch supra., [2] at 166, that “we are dealing with interests of various segments of the population, whose characteristics may change. We will not do justice by weighing interests that no longer reflect the current situation.” A change in circumstances is likely to justify altering the existing arrangements, even with respect to matters touching on freedom of religion and worship.

This having been said, we must bear in mind that “extending protection to the feelings of one part of the population is liable to infringe on the feelings of another part.” Meatrael supra. [6], at 500. Indeed, the fact that we are dealing with the subject of a sharp public controversy cannot be ignored. Moreover, we must remember that deciding such cases involves determining the character of the area and the city and, at times, even the character of the country. The case here has potential ramifications on the character of Israel’s capital, Jerusalem, whose character is important to each and every Israeli citizen.

Furthermore, we must also recall that the decision to be rendered does not deal with a minor change. Instead, at issue is a sharp and drastic change to Sabbath traffic arrangements. Let us remember that, according to the Traffic Controller’s statements, the policy of the Ministry of Transportation is that roads of this nature should remain open on Sabbaths. See p. 12 of the meeting protocol dated August 15, 1996. The Minister’s decision, however, seems to indicate that this policy has been abandoned. To a certain extent, his decision has the effect of creating a new norm to balance the interests of the various communities involved.

Absent social consensus on these issues, any deviation from the existing arrangement involves harming one of the sides to this public debate. At times, harm of this sort may be justified under the circumstances. However, a decision to depart from the existing arrangements must be anchored in particularly well-grounded considerations. It must express a basic and substantive transformation in the facts on the ground. 

31. Did a substantive change occur in the area in the last few years? The material before us suggests that the answer is in the negative. Indeed, the composition of the local population has not changed of late. For years, the great majority of the street’s residents have been Ultra-Orthodox.  For years, the street’s character was what it is today. For years, alternative routes to Bar-Ilan have existed.

Even the Traffic Controller, who serves as the supreme professional authority for these purposes, cannot identify any change in the facts which could have sparked a change in his position. He attributes his drastic change to the fact that “when I asserted that the street was not to be closed I failed to give the proper weight to the depth of harm that motor traffic on Sabbath on Bar-Ilan Street causes the local Ultra-Orthodox residents.” See para. 12 of the Controller’s affidavit dated 12.7.1996. I have already addressed the change in the Controller’s position. I merely wish to emphasize that, even according to the Controller himself, there has been no change in the facts on the ground.

It is not the existence of alternate routes that sparked the authority’s change in position. We have seen that in November of 1994 the Traffic Controller was convinced that it would be improper, from a professional, traffic-related perspective, to close Bar-Ilan on Sabbaths and holidays, despite the existence of alternate roads. It would not be excessive to repeat his statements to this effect, according to which:

The Ministry of Transportation considers Bar-Ilan Street to be a main traffic artery, connecting Jerusalem’s northern neighborhoods to the city’s center and south, every day of the week. It would be unthinkable to close this route to traffic on the Sabbath or on any other day. Arrangements to close streets on the Sabbath are only feasible on local streets, following a careful examination, and certainly not on important, central arteries.

This position, as the Traffic Controller noted in his affidavit of July 29, 1996, is anchored in “clear traffic-related considerations.” Nothing has changed from this point of view. If so, what occurred that would justify a change in the authorities’ position? What caused the Traffic Controller, who staunchly opposed the idea of closing Bar-Ilan in November of 1994, to support the closure less than two years later? What caused the Minister of Transportation, Mr. Levy, to adopt a decision so different from that of his predecessor, Minister Yisrael Keisar, who only in July of 1996 determined that “the Traffic Controller’s professional opinion is that the road is a main traffic artery not to be closed on the Sabbath” and that “the decision will be made on a professional basis?” See appendix 8 of the response brief of respondents 3-6 in HCJ 5016/96, summarizing the meeting between the Minister and the residents of Bar-Ilan Street on January 10, 1996. 

32. The Tzameret Committee, which addressed the developments in the area, noted in page 33 of its report:

After the Six-Day War, Bar-Ilan Street evolved from a peripheral street at the northwestern part of the city, to a road connecting Jerusalem’s newly built Jewish neighborhoods.… The area has become the heart of the Ultra-Orthodox concentration on both sides of Bar-Ilan Street. Although demonstrations by Ultra-Orthodox groups on Bar-Ilan Street, all the way back to 1988, can be considered a turning point in the debate, the street's one-time closure in honor of the Satmar Rebbe’s visit in 1994 is what led to increased efforts among Ultra-Orthodox factions to close the street to traffic.

The municipal elections of 1993, which granted the Ultra-Orthodox community decisive influence, gave rise to expectations in that community that the street would in fact be closed to traffic on the Sabbath. Moreover, the existence of alternate routes further strengthened the feeling that the secular public should give in to the demands of the local Ultra-Orthodox residents and refrain from traveling in their midst.

The Traffic Controller explained his change of heart in terms of the magnitude of the harm caused the Ultra-Orthodox residents. However, there is no reasonable basis for presuming that any change has occurred in the intensity of this harm over the years. The desecration of the Sabbath involved in travel has always existed. The Ultra-Orthodox residents' position regarding the desecration of the Sabbath is well-known, and has not changed over the years. Nor was there a change in the size of the local Ultra-Orthodox community. As such, it is difficult to suppose that the Traffic Controller was not aware that the Sabbath traffic gravely offends the local residents’ sensibilities and lifestyle. Indeed, it is no secret that streets in different parts of the country, particularly those adjacent to Bar-Ilan, are closed for precisely this reason.

33. Hence, the change must be found somewhere else. It is indeed quite difficult to ignore the impression that the true change lies in the Ultra-Orthodox community's unwillingness to accept genuine mutual compromise. In addition, a clear escalation is apparent in the tactics used by quite a few members of the Ultra-Orthodox community in order to force a change in the situation, including the use of threats and violence. Moreover, there has also been a change in the extent of this community's political power, both locally in Jerusalem and nationally.

Violence does not constitute a proper consideration worthy of being attached any weight, and this has been repeatedly confirmed by our jurisprudence. See, for instance, President Landau's statements in HCJ 512/81 supra, [65], at 543, insisting that it is “absolutely forbidden” to take violence into account. From this perspective, the case at bar is not dissimilar to HCJ 549/75 supra. [40], which involved the Film and Play Review Board's decision to sanction the screening of the film “Night Watcher” in theatres. The Board revoked this permission after a second deliberation, and the film was barred. In his opinion, Justice Vitkon addressed the decision to abandon the original decision, stating, at 764:

In my opinion, it is improper to deviate from the original conclusions simply because of the inability of certain factions to reconcile themselves with the Board's decision. Is the Board not aware that with every sensitive issue—whether sexuality, nudity, violence or offense to religious sensibilities—there will always be a minority, or perhaps even a majority, who will prefer that such a film not be publicly screened? However, he who believes that such a film should nonetheless be presented, is by the same token convinced that these objections, although sincere, should not be taken into account. This is the "other side" of mutual tolerance required in pluralist societies. If these objections give rise to the possibility of violent outbursts, this is a matter for the police to deal with in order to protect the public and preserve law and order. It is not, however, a consideration that should in any way influence a Board member to censor a film which, in his original opinion, was worthy of being screened.

To this, I will also add that developments regarding the Ultra-Orthodox community's standing in Jerusalem and its political clout cannot be allowed to influence the proper balance here. The proper balance must consider the facts on the ground and the local population's composition. It must take into account the road's size and importance. It cannot be influenced by the political clout of those who do not live adjacent to Bar-Ilan Street.

34. I summarize: none of the data presented before us can possibly justify deviating from the arrangement customary on Bar-Ilan Street for years now. No relevant change in the situation on the ground was pointed out. No consideration liable to prevail over considerations of transportation was shown. Moreover, I reiterate: the fact that the Minister is a religious, observant man is not a factor or reason that can justify closing Bar-Ilan Street on the Sabbath.

35(a). We have described the essence of the debate. We have examined the Minister’s decision and the applicable standards. We have surveyed the defects in the Minister’s exercise of discretion. We conclude that, according to the proper standards, the Minister’s decision does not reflect a reasonable exercise of the authority vested in him. Indeed, the Minister failed to take into account all the relevant considerations and did not give the proper weight to all factors.

(b) It seems to me that the Minister did not give proper weight to Bar-Ilan Street’s nature and character. His decision suggests that it is not clear whether he considered all the relevant data regarding the scope of traffic on that street. In any event, this data is not set out in the Minister’s brief. One way or the other, the Minister did not consider the fact that he is dealing with a main traffic artery, which cannot be viewed as a “private domain,” belonging to the Ultra-Orthodox community living alongside it. As such, the Minister did not give proper weight to positions of professionals charged with the matter—professionals who originally claimed that, from a traffic perspective, Bar-Ilan must necessarily remain open on Sabbaths and Jewish holidays.

(c) The Minister took into account data indicating that those seeking to reach Jerusalem’s northern neighborhoods from the entrance to the city will be able to reach the northeastern neighborhoods even subsequent to Bar-Ilan’s closure. According to this data, closing the street will lengthen the travel time between the city’s entrance to the Sanhedria Intersection by 1.5 km, or two minutes, via Route no. Four. The residents of western neighborhoods, such as Beit HaKarem and Yiryat Yovel would also have access to Route no. 4. The Traffic Controller further notes that the northern neighborhoods’ residents have the option of directly exiting the city via Route no. Four to Tel-Aviv or via the Modi’in Road (Route no. 443). As for the additional time such a detour would take, the Tzameret Report suggests that it is similar to the extra time it would take to reach the city’s northwest. See the Tzameret Committee Report, at 166.

I believe it is difficult to see these facts as changing the balance in the matter before us.

First, this description is no solution for those seeking to reach the Bar-Ilan Street area on Sabbaths, neither for those who live there nor for those who wish to visit the local residents.

Second, I am not convinced that the extra travel-time is negligible. Thus, in Baruch [2], a detour of two and a half additional kilometers was understood by Acting President, Justice Landau as a factor acting against allowing the Traffic Controller’s decision in that matter to stand. This was also Justice Vitkon’s view. Nevertheless, both these judges upheld the decision, essentially because the resulting harm was limited to no more than fifty vehicles. Id. at 166. Needless to say, the matter before us is dramatically different. As noted, the road in question in central to Israel’s capital, serving not only Jerusalem’s residents but all those visiting the city. In light of the above, I do not believe that the availability of Route no. Four renders the Minister’s solution of choice palatable from a traffic perspective. We recall that, despite the existence of Route no. Four, the Controller’s professional opinion, from the end of 1994 to March of 1996, was that Bar-Ilan should not be closed.

Third, in HCJ 5090/96, the petitioners contend that the detour, Route no. Four, “passes through Shuafat Ridge, a recently built Ultra-Orthodox neighborhood, and adjacent to the Ramot neighborhood, itself containing a significant number of Ultra-Orthodox residents. It is no secret that the Ultra-Orthodox residents of Shuafat Ridge and Ramot also desire this street’s closure.” See para. 19 of the petition. To this we should add that the area where Route no. Four connects with the Shmuel HaNavi Intersection is also populated by Ultra-Orthodox residents. With this in mind, it is difficult to see the detour via Route no. Four as offering a reasonable alternative to Bar-Ilan’s users.

Indeed, it would appear that rerouting traffic to Route no. Four merely redirects the harm from one street's (Bar-Ilan) Ultra-Orthodox community to that of another, the alternate route, which is equally Ultra-Orthodox. Moreover, rerouting Sabbath traffic to the alternate route intensifies the desecration of the Sabbath, by increasing the requisite travel time.

(d) The Minister decided that Bar-Ilan Street would be closed during certain hours on Sabbaths and Jewish holidays. He imposed an intermittent closure of the street to traffic on those days or, in the colorful words of Justice Cheshin, a “zebra” like closure. Thus, for part of the Sabbath, the street would remain open, while it would be closed for the other. Part white, part black, with every person deciding what they feel is which. At first glance, this approach seems to consider the needs of those who wish to use the road on the Sabbath. Upon closer examination, however, it becomes apparent that this arrangement is riddled with difficulties. Knowing that the road will be closed during certain hours, motorists will fear not being able to reach it in time, which will undoubtedly deter many of them from arriving in the first place. Furthermore, the Minister decided that the road will be closed for a period following the entrance of the Sabbath and for a period prior to its end. These times, however, vary with the calendar, and not all are familiar with them. As such, a partial closure is liable to become quasi-absolute.

Beyond this, there is an additional practical difficulty. The material submitted to us suggests that the road will turn into a pedestrian walkway of sorts for the Ultra-Orthodox during the hours that it is closed to traffic. In light of the members of the local Ultra-Orthodox community’s sworn testimony, detailing their staunch belief that the street should remain closed throughout the Sabbath, it is quite difficult to see how the road can be safely cleared of pedestrian traffic so as to allow motorists to use it during the times reserved for such use. This fact too is liable to effectively turn the Minister’s decision to one that brings Sabbath motor traffic on Bar-Ilan Street to an absolute halt.

(e) And so, I believe that as things stand, the Minister’s decision to close the street, even partially, in order to spare the religious sensibilities of the Ultra-Orthodox public, fails to reflect a reasonable balance between the relevant considerations. In truth, the harm to the religious public’s sensibilities is beyond question. However it seems to me that, under the circumstances, and in light of other factors, this harm does not justify the Minister’s decision to close the street. To my mind, the Minister’s decision fails to strike a reasonable compromise between the various interests. This being the case, I am convinced that the decision is unreasonable and must be struck down.

36. My conclusion is not altered by the recommendations of the committees that addressed the matter of Sabbath traffic on Bar-Ilan Street, nor by our case law on similar issues. I will now turn to briefly examine both these issues.

The Committees

37. The first committee to broach the matter was headed by Mr. Elazar Sturm. This committee was set up by the Mayor of Jerusalem in December of 1994 to examine traffic arrangements in Jerusalem. The Committee’s recommendations were published in 1995, and touched on a number of Jerusalem streets, including Bar-Ilan. The Committee recommended that Bar-Ilan be closed to traffic on days of rest during prayer times only—105 minutes on the Sabbath eve, four hours on Sabbath morning, and 105 minutes before the end of the Sabbath.

In retrospect, it became clear that this Committee was misled by inaccurate data regarding the volume of traffic on the road. Thus, appendix 9 to the respondents’ response in HCJ 5016/96, which summarizes the meeting that took place on February 13, 1996 at the Minister’s office, with the participation of the Mayor of Jerusalem and Mr. Sturm, indicates that the latter believed that there is a decrease in the volume of traffic on the Sabbath—from 15,000 vehicles to only 3,500. Moreover, he was under the impression that only 700 vehicles would be affected by the street’s closure during prayer times. In addition, the Traffic Controller’s affidavit of July 29, 1996 indicates that the Sturm Committee felt that traffic on Bar-Ilan Street on Sabbaths amounted to only 12% of weekday traffic.

38. Comparing this data with the data that surfaced following a subsequent professional examination reveals that the original data was erroneous. It appears that the volume of traffic weekdays stands at about 50,000 vehicles—over three times the data presented before the Sturm Committee. On Sabbaths, traffic on Bar-Ilan stands at over 13,000 vehicles, once again three times the figure presented to the Committee. That figure constitutes 28% of weekday traffic, not 12% as the Sturm Committee believed. Over 5,000 vehicles pass through Bar-Ilan Street during prayer times on the Sabbath—over seven times more than the Sturm Committee had estimated! As such, the Sturm Committee’s conclusions cannot be seen as carrying any weight for our purposes. These conclusions are based on faulty and unreliable data.

39. The second committee to deal with the issues at bar was the committee chaired by Dr. Tzvi Tzameret (“the Tzameret Committee”). This committee was set up on August 27, 1996, on the heels of the hearings of these petitions. The committee report stated that:

Taking into account the needs of the Ultra-Orthodox community, we hereby recommend adopting the Sturm Committee’s decision to close Bar-Ilan Street to traffic on Sabbath and holidays during prayer times, provided arrangements are made to ensure the mobility of the secular public in accordance with its needs, within the framework of the existing status quo.

This decision was adopted by a majority of five Committee members, with one abstaining and two opposing. A short time thereafter, however, it became clear that the parties were substantially divided as to the proper interpretation of the recommendation. Three of the members who supported the decision, Professor Eliezer Schweid, Professor Galia Golan and Dr. Tzvi Tzameret, stated that they had supported the proposal based on the understanding that it was intended to make way for the institution of public transportation in Jerusalem on Sabbaths. In contrast, one of the proposal’s other supporters, Professor Daniel Shperber, rejected this interpretation, saying that the expression “status quo” was meant to recognize every secular person’s right to desecrate the Sabbath, but to not recommend instituting public transportation on that day.

40. As such, the committee's recommendations cannot be perceived as truly reflecting the views of the actual majority of Committee members.  In effect, no consensus had crystallized among the members as to the possibility of closing Bar-Ilan on Sabbaths. As such, the Minister cannot rely on this Committee report, and it would appear that of this he is aware. In his brief, the Minister stated that, in light of the statements of three of the Committee members, the recommendation does not reflect “a social consensus between the various segments of the public regarding Sabbath traffic.” See paragraph 22. In a similar vein, the Minister made the following statements in the Knesset (on November 6, 1996, sitting 35) (appendix 2 to the additional affidavit from November 13, 1996 in HCJ 5025/96) “I do not wish to rely on the Tzameret Committee’s report at this juncture as its members each have their own interpretation."

To this I will add that the committee's recommendations are not based on a normative solution to the problem of Bar-Ilan Street. Rather, it is a social compromise, the fruit of negotiations conducted among the committee members. Moreover, the other matter discussed by the committee—the issue of public transportation on the Sabbath—is unrelated to the question of Bar-Ilan Street’s closure, except according to three of the Committee members. It gives rise to problems of a completely different character. Thus, the committee's recommendations cannot be seen as a normative source to support the reasonableness of the Minister’s decision.

Case Law

41. My conclusions remain unaltered even in view of this Court’s previous rulings in which it refrained from interfering with the authority’s decision to close other roads.

         (1)   The League [1] case dealt with the Traffic Controller’s decision to close segments of Jerusalem’s King George Street and Shmuel Hanagid Street, adjacent to the Yeshurun Synagogue, to traffic on Sabbaths and Jewish holidays. The road segments were closed during the morning hours because “motor traffic on the streets, on festivals and Sabbaths, disturbs the concentration of the worshippers of the Yeshurun synagogue, preventing them from praying comfortably.” Id. at 2667. To this end, it was taken into account that “the Yeshurun Synagogue is a large, central synagogue in Jerusalem, serving a significant community of worshippers. Moreover, the alternative to motorists would only require them to travel an additional 300 meters.” Id. 

The Court held that the Traffic Controller was authorized to take these considerations into account, despite the fact that the factor in question was of a religious character. In its judgment, the Court considered the significant disturbance caused to the large community of worshippers and the fact that motorists would only have to travel an additional 300 meters. In that situation, the Court held that an appropriate balance between the conflicting interests had been struck.

I do not feel that that decision has any influence on the result to be reached here. The street in that instance was not a central traffic artery like Bar-Ilan. Nor did that matter deal with the harm to the residents living in the segments to be closed. We will recall that the balance in the case before us must be struck in accordance with the concrete circumstances of the matter, as this Court has held, Id. at 2668:

The Central Traffic Authority is under a duty to examine each concrete case according to its special circumstances, taking into account each interest likely to be affected by the street closure, for better or worse. In the end, the problem is one of degree and extent.

Having found that the circumstances here are substantively different from the League [1] case, it is clear that the conclusion reached by the Court there is not binding here. To this I will add that, in contrast to the League [1] case, the matter of synagogues was not a central consideration in this instance. Advocate Mandel, learned counsel for the Minister and Traffic Controller, submitted that her client, the Minister, did not attach any significant weight to those synagogues along Bar-Ilan Street:

While there may also be a few synagogues along Bar-Ilan Street, priority was given to allowing the religious population to live an observant lifestyle. (protocol of the hearing of January 12, 1996, at 5).

(B) The Baruch [2] case involved the Traffic Controller’s decision to close a 300 meter segment of HaShomer street in Bnei Brak to traffic on Sabbaths and Jewish holidays. The road in question was “within an Ultra-Orthodox community, on both sides.” Id., at 161. One of the two Ultra-Orthodox neighborhoods adjacent to the road had been only recently built. The road forming the subject of controversy connected two main roads—Geha Road and Jabotinsky Drive. Getting around the closed segment involved traveling 2.5 additional kilometers.

The Court upheld that decision, with the majority of justices emphasizing that very few members of the secular public were likely to be harmed. Acting President Landau pointed out that, while the decision restricted motor traffic on Sabbath around the clock, and required motorists to travel an additional 2.5 kilometers, the closure involved “discomfort to only a very limited segment of the public, the owners of only about fifty private vehicles…this as measured against disturbing the Sabbath rest of a large population in what is the heart of the of the Ultra-Orthodox community." Id. at 165. In a similar vein, Justice Vitkon pointed out that “the number of local residents wishing to see the street closed on Sabbaths and festivals far outweighs the few interested in protecting their freedom of movement, and even these will not be denied that freedom but only have it minimally restricted.” Id. at 167. Justice Etzioni there limited himself to a general comment, and stated that  the Court is not to interfere with the Traffic Controller’s decision, as the latter “issued the order only after seriously weighing several factors, taking into account all the interests and data respecting the locals, particularly in light of the recommendations of the public committee” Id.

This description clearly reveals that the central factor in the Court’s decision was the negligible size of the secular public whose freedom of movement was affected. Under the circumstances, the Court upheld the decision to close the street to traffic on the Sabbath. As described above, the situation before us is not at all similar to the situation there. We are dealing with a main road, which connects entire parts of Jerusalem to each other. How can a main road such as Bar-Ilan be seriously compared to a road serving a mere fifty people? As we have seen, the number of motorists affected is a crucial issue in the case here.

42. In light of the two decisions cited above, the position of the Minister of Transportation here represents a dramatic change. Upholding the Minister’s decision in this case would be tantamount to setting a new norm, according to which it will be possible to close main traffic arteries, of significant importance, whenever the feelings of the local religious community are offended. As a result, the secular public will have no choice but to become accustomed to routine travel along detour routes on the Sabbath.

Truth be told, this matter requires us to weigh the circumstances pertaining to it, and it alone, as I have done in my judgment. Nonetheless, balancing the interests and considerations relevant to the dispute also sets a precedent for the future. This precedent will be relied on in other cases. The word of the Court is heard from afar. Thus, in proceeding to rule in this case, it is incumbent on us to take a holistic, contextual approach, aware of the road our that decisions pave. If in the past, we were asked to rely on the League [1] and Baruch [2] cases—cases where special circumstances justified Sabbath street closures—our decision in this instance will undoubtedly be cited in the future. If we uphold the position of the Minister in this instance, we will be adopting a new approach, according to which offense to religious feelings is primary and takes precedence over other factors. Thus, the tolerance and compromise required of Sabbath observers shall disappear and traveling along detours shall, by the same token, become routine. So it will be, even when the street to be closed on the Sabbath is a central traffic artery.  For obvious reasons, I shall bring no specific examples, but I do foresee the imminent closure of additional main roads in Jerusalem on the Sabbath, simply because the particulars relating to those roads are no different from the circumstances at bar.

Certainly, these statements are not meant as a warning against a “slippery slope,” not that that argument should be minimized. Rather, my fear is that the application of this new norm will have practical ramifications, today and certainly in the future, on Sabbath street closures in Jerusalem.

43. I feel it necessary to make an additional comment with regard to this matter. Among the conditions cited in the Minister’s decision was the condition that the entrance to Jerusalem remain open. The need for setting out a condition such as this, intended to calm those wishing to reach Jerusalem by car on Sabbaths and holidays, is in itself worrisome. Did anyone even fathom that the entrance to the city would actually be closed to traffic on Sabbaths? It is unthinkable that the entrance to Israel’s capital would be closed to the nation’s citizens, wishing to visit it on Sabbaths and holidays. The Minister’s decision seems to suggest that the entrance remaining open is somehow contingent on Bar-Ilan Street’s partial closure. I will not deny that I fear the dynamic likely to ensue in the wake of this decision.

44. I will now summarize my opinion. I have concluded that the Minister’s solution is unreasonable, and that this Court’s intervention is required. This conclusion is based on data specifically pertaining to Bar-Ilan Street, which shows that the road in question is central, and serves a large number of secular motorists on the Sabbath. As such, the harm to the sensibilities of the local Ultra-Orthodox residents must give way to the motorists’ freedom of movement.  

The Ministry of Transportation’s professional experts also based their opinions on the road’s centrality. I have deemed the Minister’s decision unreasonable by virtue of his failure to raise any concrete reason that could serve as a basis for his decision to deviate from his own professionals’ unequivocal opinion. Nor did he offer any basis supporting the substantial change in the previous long-standing arrangement. As such, I believe that no significant weight should attach to the argument that alternate routes are available, particularly since these professionals were well aware of this and, nonetheless, unequivocally opposed the closure.

My conclusion is also based on the fact that the harm caused to those members of the public wishing to reach the Bar-Ilan Street area on Sabbaths and holidays was not considered. Nor was proper weight attached to the harm caused the local secular residents, living on and around Bar-Ilan Street.

Based on these grounds, I have concluded that the Minister’s decision deviates from the parameters of reasonableness, and that this Court’s intervention is required.

Epilogue

45. It is no secret, and indeed self-evident from the material before us—especially from the report of the Tzameret Committee—that, prior to the adoption of the arrangement prescribed by the Traffic Controller on July 10,1996, serious disturbances occurred on Bar-Ilan Street. This problem was raised in an earlier petition. See HCJ/ 4712/96 Meretz-Democratic Israel Faction v. Commander of the Jerusalem District, Israel Police [74], which discussed the police decision not to permit a secular march in the area. There, Id. at 82, we cited the opinion of the Jerusalem District Police Commander:

In this last year, the police have been faced with attempts by Ultra-Orthodox elements to disturb the peace on the Sabbath on a weekly basis. Every Sabbath, hundreds of Ultra-Orthodox individuals gather to block the road. They call out, screaming at passing vehicles. At times, there are attempts to throw stones at passing vehicles, or to place roadblocks.

I revisit these statements, bearing in mind the respondents’ claims in support of the street’s closure. The response affidavit submitted by respondents numbers 7-16 in HCJ 5016/96, who are also respondents 8-17 in HCJ 5025/96 and respondents 6-15 in HCJ 5090/96, cites our decision in Baruch [2]. There, we stated that the Court will not strike down an otherwise proper arrangement merely because violence was used prior to its adoption. In the same breath, however, the respondents proceed to argue that the violence in the area must be “a determinative consideration regarding Bar-Ilan’s closure on Sabbaths and holidays.”

Likewise, respondents numbers 11-20 in HCJ 5016/96, who are also respondents in HCJ 12-21 HCJ 5025/96 and respondents 10-19 in HCJ 5090/96, argue that there is a serious fear that a failure to close Bar-Ilan “is liable to result in serious violent confrontations between extremists on both sides, thereby fanning the flames and dragging all of Jerusalem into an unending cycle of violence.” These respondents then turn to the “stormy demonstrations which occurred on Bar-Ilan Street in July-August of 1996, during which many police offices and protesters were injured.” Respondents submit that these events demand a rule in which freedom of movement takes a backseat in order to prevent near certain harm to the public order. 

It appears that these respondents are unfamiliar with the entirety of our statements in Baruch [2]. There, Id. at 165, we stated that, even though an otherwise proper arrangement will not be struck down because attempts to achieve this arrangement employed violence, a country of law and order simply cannot allow itself to be subject to violent pressure tactics:

In a law-abiding country such as ours, the physical pressure of illegal demonstrations and violent protests must never be allowed to impose solutions. Violence breeds violence and a country that allows such violence to succeed will destroy itself from within…

How should the Court, in retrospect, relate to the unfortunate fact that that the administrative arrangement in question was reached following violent outbursts? Clearly, no court would uphold an illegal arrangement for fear that striking it down will lead to renewed violence. On the other hand, nor would it strike down an otherwise proper and suitable arrangement merely because of the violent incidents that preceded it.

We are not dealing with a near certain probability of harm to the public order. Instead, our concern is with an overt threat to use violent tactics to disturb the public peace, the likes of which have already been employed, if the respondents’ demands regarding Bar-Ilan Street are not met.  Contrary to some of the respondents’ submissions, not only is this factor not a decisive factor in whether we should uphold the Minister’s decision, it is not even a proper one. It is no coincidence that the Minister failed to advance this particular argument in his briefs. As we noted in Baruch [2], this line of reasoning is an invitation to street violence to overwhelm the decision-making process. It is tantamount to placing a gun against the authorities’ forehead. It encourages anarchy to replace the rule of law. As such, this consideration may not be taken into account by a democratic regime.

46. This line of reasoning, advanced by respondents, brings me back to the statements cited by my colleague, Justice Turkel, in Meretz supra. [74], at 835. The statements were written by Professor David Hed, in The Limitations to Tolerance and Freedom: The Liberal Theory and the Struggle Against Kahanism, regarding tolerance:

Tolerance contains a paradox, as it requires that violence not be used against views and behavior that are considered unjustified. Why must we tolerate views and speech that seem completely erroneous and indeed loathsome?

In general, the answer to this question is that this is the only way to maintain a pluralistic society, in the absence of consensus regarding political, religious or moral values.

These statements are equally applicable here. In effect, mutual tolerance and compromise are the recipe for maintaining communal life in a society of many shades such as Israeli society, particularly in a place as complex as Jerusalem. The duty to be tolerant, however, is not a one-way street, to which only the secular community is subject. This duty also binds the Ultra-Orthodox community, who demand that their religious sensibilities and lifestyle be respected. Tolerance is equally required of this public, in the face of activities which may not be to their liking. Only by way of mutual tolerance will it be possible to attain true coexistence, which reflects an authentic compromise. To this effect, President Shamgar wrote in Hoffman supra. [39], at 354:

Tolerance and patience are not one-way norms, but broad, multi-dimensional imperatives…tolerance is not to be invoked only to collect rights, but rather, as a measure for recognizing one’s fellow’s entitlements…tolerance must be mutual. Shows of strength that surface from violent groups are not worthy of such tolerance.

In a similar vein, in CA 105/92 supra. [20], at 211, Justice Barak stated:

Tolerance is a central value in the public order. A democratic society seeking to fully maximize the wants of each individual will end up unable to satisfy even the minority of those aspirations. Ordered communal life is naturally premised on mutual forbearance and mutual tolerance.

An arrangement attained by force is no compromise. Nor does it reflect tolerance. Instead, it demonstrates power, and converts the decision-making process into a pattern of surrender to the use of violence. Justice Silberg highlighted the dangers of such a pattern in HCJ 155/60 supra. [64], at 1512:

Today, it is argued before us that the religious sector is likely to engage in demonstrations and protests; tomorrow, it will be argued that anti-religious sectors will run wild, disrupting the peace if the city gives in to their religious counterpart’s demands. This line of argument is a sharp and very dangerous sword, liable to result in the surrender of public institutions to the terror on the street.

To my dismay, it seems that the Minister’s decision here constitutes a very dangerous development. Prior to the decision, the objective facts in the Bar-Ilan Street area remained unchanged. The professional opinion of the authority charged with the matter was clearly and unequivocally against the closure. The only change was an increase in violent activity by the Ultra-Orthodox in the area; they have employed violent tactics, which have become routine and systematic.  It is against this backdrop that the Traffic Controller made his new decision.

Therein lies the danger. Numerous points of contention exist in the area of secular-religious relations, including the problem of traffic on Sabbaths and Jewish holidays. Thus, the fact that the decision here was the product of the violent pressure may signal that disturbing the peace is likely to pay off. As I noted in Meretz supra. [74], at 830 “surrendering to those threatening violence shows weakness and encourages additional threats and violence, until it becomes difficult to foresee when and under what circumstances such violence will cease.” It is incumbent on the authorities to break this vicious cycle, before it is too late. It must send a clear message that violence does not pay off.

47. My colleague, the President, believes that the violence on Bar-Ilan Street did not influence the Minister’s decision. My colleague distinguishes between cases in which violence actually caused the change in policy, and between cases where the violence served “only” to raise the matter, and bring it to the authority’s attention.

For me, this distinction is a difficult one. It is problematic in terms of the lesson that must be sent to those who believe that violence can help them achieve that which they could not obtain under ordinary circumstances.

To this end, it is important to emphasize exactly what occurred in the case before us. The Traffic Controller’s original position was that Bar-Ilan Street should not be closed, even partially. This was a reasonable position, which would not have required the Court’s intervention. This is also the view of my colleague, the President, see para. 104 of his opinion, who, in discussing the various options which the Minister was authorized to select, noted:

[h]e would have been authorized to decide to continue with the status quo. In other words, Bar-Ilan Street would have remained open to traffic. This would have been a proper

 

decision, striking an appropriate balance between the various considerations to be taken into account.

 

What happened in the case before us? Although the state of affairs on Bar-Ilan Street prior to the Minister’s decision was both reasonable and appropriate, and though all the relevant data remained unchanged, the surge of violence caused the issue to be “reconsidered.” Even if it could be said that the violence did no more than lead to the matter being reconsidered, this is sufficient for those who employed it. I fear that this violence will have far-reaching implications.

This being the case, if my opinion were to be accepted, the petitions in HCJ 5016/96, HCJ 5025/96 and HCJ 5090/96 would be upheld, and the orders nisi made absolute, and the Minister’s decision to partially close Bar-Ilan Street to traffic on Sabbaths and holidays would be declared null and void. I would reject the petition in 5434/96 which requested that Bar-Ilan Street be closed at all hours of the Sabbath and Jewish holidays.

 

I would not make any order for costs under the circumstances.

Justice M. Cheshin

Before me are the opinions of my colleagues, President Barak and Justice Or. Both are well-reasoned. Both are beautiful legal tapestries. In my heart I always knew which opinion I would prefer. Now, in my own words, I shall attempt to explain the reasons for my choice. 

The Minister’s Decision and the Sturm Committee Report

2. On one of the first days of November 1996, the Minister of Transportation, Rabbi Yitzhak Levy, decided to close Jerusalem’s Bar-Ilan Street to motor traffic on Sabbaths and Jewish holidays during specific hours, essentially prayer times. In the Minister’s own words:

Bar-Ilan Street will be closed to traffic on the Sabbath and Jewish festivals during prayer times, in accordance with the Sturm Committee’s recommendation.  For as long as the road is closed, Golda Meir Boulevard (The Ramot Road) shall remain open, as will the entrances to the city.  A lane for private vehicles shall also remain open on Jaffa St, on Sabbaths and Jewish festivals.

The closing times shall be from one and three quarter hours before the entry of the Sabbath, from one and three quarter hours prior to the termination of the Sabbath and between the hours 07.30 - 11.30 during the Sabbath day.

The Minister made this decision in his capacity as Traffic Controller, after assuming the Controller’s powers as per section 42 of the Basic Law: The Government. This decision is before the Court for review. The result turns on the effect of this decision, which we know was the Minister’s. In other words, while we know that the hand signing at the bottom of the decision was the Minister’s, the voice and authority behind it are the Traffic Controller’s. Indeed, the Traffic Controller remains Traffic Controller even if the Minister temporarily fills his shoes.  Needless to say, we are reviewing the Traffic Controller’s decision, the issue being whether the Traffic Controller was authorized to close a street to traffic for a significant period of time, every Sabbath, for what are essentially religious reasons.

3. The decision in question speaks for itself. The Minister of Transportation informed us that he decided to close Bar-Ilan Street to traffic “in accordance with the Sturm Committee’s recommendations.” The Minister decided to adopt the Sturm Committee’s recommendations as is, including the committee’s reasoning. Otherwise, why would he even raise the Sturm Committee’s name to begin with? The question we should be asking is what prompted the Minister to adopt the committee’s recommendations and why did he see fit to do so?

4. First and foremost, the Sturm Committee was not established by the Minister of Transportation, nor did it report to him. Rather, the committee was established by and reported to Mr. Ehud Olmert, the Mayor of Jerusalem. Its report was also presented before Jerusalem’s City Council, which served as a basis for the Council’s decision of October 30, 1995. What then prompted the Minister to pull out the Sturm Committee’s recommendations from the archives, dust them off and revive them? I have searched long and hard but failed to find a clear reason for this course of action.

Second, anyone reading the Sturm Committee’s report will learn that it can speak in vague generalities. For instance: “the Committee believes that the problem of Sabbath Traffic deeply divides Jerusalem’s population and that appropriate solutions must be found.” The Committee also stated that:

Testimony before the Committee reflected broad agreement and understanding among individuals of all social and political colors, religious and secular. There was agreement and understanding regarding requests to foster an atmosphere which conforms to the sensibilities of religious neighborhoods, while bearing in mind the needs of others

These statements are accurate and well known. However, to conclude from this that it is proper to close Bar-Ilan Street—as per the Sturm Committee’s recommendation and the Minister’s decision—is quite far-fetched. In effect, the Committee’s report bears no trace of any in-depth analysis dealing with Bar-Ilan Street’s closure, and the Committee’s majority failed to supply a proper response to Ya’acov Rubin’s minority opinion, which staunchly opposed Bar-Ilan Street’s closure. Rubin, himself a religious man, carefully reasoned his reservations regarding the majority’s recommendation, and I have yet to see or hear a worthy response to his dissent. 

Third, the Tzameret Committee’s report, unlike the Sturm Committee’s report, presents us with an in-depth and detailed analysis of Bar-Ilan Street’s closure. How is it that the Minister failed to consider the Tzameret Committee’s observations regarding Bar-Ilan Street?  While the Minister was authorized not to agree with the Tzameret Report, he was not permitted to ignore the findings of a committee that he himself appointed. How could he possibly have ignored these thought-out statements and go directly to the Sturm Committee’s report? Let us also recall that the Sturm Committee’s report was submitted two years prior to the Minister’s decision.

Fourth, as my colleague, Justice Or, noted in paragraphs 37 and 38 of his opinion, the Sturm Committee relied on erroneous data as to the volume of traffic on Bar-Ilan Street. While it would not be accurate to say that faulty data necessarily leads to erroneous conclusions, it is clearly improper to adopt the committee's findings without verifying the impact of the faulty data. To the best of our knowledge, no such verification was conducted.

Fifth, when the Sturm Committee’s report was submitted, the Traffic Controller opined that “it would be unthinkable to close Bar-Ilan to traffic on Sabbaths or on any other day.” It would stand to reason that the Minister, acting as Traffic Controller, would attempt to explain the statements made by the Traffic Controller two years prior. Unfortunately, no such explanation was offered.

5. Finally, while the Sturm Committee did recommend that particular streets be closed to traffic on the Sabbath and holidays, it further recommended that other streets not be closed. Indeed, the Committee proposed that Yam Suf Street remain open for “it serves a significant number of motorists from the Ramot Eshkol and Givat HaMivtar neighborhoods.”

These recommendations were presented to Jerusalem’s City Council on October 30, 1995. In its decision regarding Bar-Ilan Street, the Council held that it lacked the authority to order Bar-Ilan’s closure—“The Jerusalem City Council cannot close Bar-Ilan Street to traffic on Sabbaths and Jewish holidays.” As for Yam Suf Street, the City Council decided to close it partially, without explaining why it saw fit to stray from the Sturm Committee’s recommendations. From that very day, Yam Suf Street has remained partially closed to traffic on Sabbaths and holidays, in accordance with the decision of the Mayor and the City Council and contrary to the Sturm Committee’s recommendation. Both the Mayor of Jerusalem and the City Council sharply deviated from the Sturm Committee’s recommendations, a deviation for which we have found no explanation.

The Minister of Transportation has decided to adopt the Sturm Committee’s recommendation regarding Bar-Ilan Street’s closure. If so, than why did he not further add and instruct that Yam Suf Street be opened, in accordance with the Sturm Committee’s recommendation? For the recommendation to close Bar-Ilan Street was made simultaneously with the recommendation not to close Yam Suf Street. These recommendations are connected. If the Minister saw fit to adopt the one, why did he fail to adopt the other? The reasons for this are unclear and have not been presented to this Court.

6. During the hearings, it was proposed that Bar-Ilan Street be closed, in accordance with the Sturm Committee’s recommendations, provided that Yam Suf Street be opened. In other words, the Court suggested that the Sturm Committee’s recommendations be fully implemented—with regard to both Bar-Ilan Street and Yam Suf Street.  Petitioners accepted this proposal, while the Minister requested additional time to examine it. Later, the Minister informed us of his refusal to accept the proposal, stating that “there is no significant traffic connection between closing Bar-Ilan Street and reopening a segment of Yam Suf Street. Yam Suf is not an alternate route to Bar-Ilan.”

I admit that I do not understand this answer. First of all, no one suggested that reopening Yam Suf Street was intended to ease Bar-Ilan Street’s closure. Not even the Sturm Committee argued this point. Rather, all that the Committee said was that this street “serves a significant number of motorists from the Ramot Eshkol and Givat HaMivtar neighborhoods." These words remain uncontradicted.  Second, it was clear to all that this quid pro quo—closing one street and reopening another—was intended to form the basis for mutual concessions and mutual tolerance. Did the petitioners not share the Mayor of Jerusalem’s awareness of the fact that Yam Suf Street was not meant to serve as an alternate route to Bar-Ilan Street? Anyone who reads the Mayor’s letter to the Minister of Transportation will learn and understand—a street that has been closed will not be reopened.

A final word: putting aside the Mayor of Jerusalem’s position, we have yet to hear a proper answer from the Minister as to why he decided to adopt only the restrictive parts of the Sturm Committee’s recommendations, while rejecting other parts. For my part, it is my belief that the burden of explaining and clarifying this lies with the Minister. No explanation, however, was either seen or heard.

The Tzameret Committee

7. In his brief of November 6, 1996, the Minister of Transportation discussed the Tzameret report and its recommendations at length. To the best of my understanding, the Minister decided not to make use of the Committee’s recommendations due to the differences of opinion which arose among its members regarding Sabbath traffic arrangements.  Later on, he decided to rely on the same part of the Committee’s recommendations directing Bar-Ilan Street’s closure on Sabbaths and holidays during prayer times. This left me confused: did the Minister make use of the Tzameret Commission’s report or did he not?

8. The following was the Tzameret Committee’s recommendation, submitted by a majority of five members, with two members dissenting and one abstaining:

Taking into account the needs of the Ultra-Orthodox community, we hereby recommend adopting the Sturm Committee’s decision to close Bar-Ilan Street to traffic on Sabbath and holidays during prayer times, provided arrangements are made to ensure the mobility of the secular public in accordance with its needs, within the framework of the existing status quo.

Anyone reading this recommendation will see that it is divided into two parts. The first part orders that Bar-Ilan Street be closed on Sabbaths and holidays during prayer times. The second part is contingent on the first—Bar-Ilan may be closed “provided arrangements are made to ensure the mobility of the secular public in accordance with its needs, within the framework of the existing status quo.”

This second part served as a sharp point of contention among the Committee members, shattering the consensus respecting Bar-Ilan Street’s closure expressed in the first part. As soon as the ink on the report was dry, everyone began to offer their own view as to what was included in the report. After the dust settled, we were left with two opposing camps, each denying the other’s point of view. Some Committee members believed that Bar-Ilan Street should not be closed unless public transportation was instituted on Sabbaths. Other Committee members interpreted the report as precluding public transportation from being introduced. I presume that each and every Committee member argued in perfectly good faith—how could I presume otherwise? Even so, we do not have an unequivocal recommendation made by the Committee.

9. Had the Minister informed us that he did not see any need to consider the Tzameret Committee’s recommendations, as they were not unequivocal, I would have been silent. However, in his brief, the Minister found it appropriate to contest the second part of the recommendation, a course of action which prompts me to speak out. Regarding this second part, the Minister had the following to say:

The Committee’s recommendation regarding Bar-Ilan Street’s closure is two-fold: the first part is clear; the second is ambiguous and subject to multiple interpretations. 

And further on:

The said condition…is more opaque than transparent.

In conclusion, the Minister stated:

In light of the data presented, no one among the committee believed that the closure of Bar-Ilan Street on Sabbaths and holidays was completely inappropriate.

Five remaining members recommended that, taking into account the needs of the Ultra-Orthodox population, Bar-Ilan Street should be closed on Sabbaths and Jewish holidays during prayer times. Two Committee members believed that Bar-Ilan Street should be closed to traffic throughout the Sabbath and holidays. One member abstained.

Moreover, the Minister stated:

And so it is that, to my understanding, the majority of the Tzameret Committee members believed that an appropriate balance between the freedom of movement and  the lifestyle of the Ultra-Orthodox community residing around Bar-Ilan Street justifies adopting the Sturm Committee’s recommendation, according to which Bar-Ilan Street shall be closed during prayer times on the Sabbaths and Jewish holidays.

And more:

From the above it appears that, were I to adopt the Committee’s recommendations regarding street closures throughout the country, and effect the proper statutory changes, nothing would prevent a decision to close Bar-Ilan Street to traffic on Sabbaths and Jewish holidays.

Furthermore:

The above suggests that the majority’s recommendations are not contingent on instituting public transportation.

Under these circumstances, the recommendation before me cannot be said to reflect a social consensus between the various segments of the public regarding Sabbath traffic.

The following is my own interpretation of the Minister’s statements: the recommendation to close Bar-Ilan Street is unequivocal and clear, whereas the subsequent condition is ambiguous and opaque. Therefore, says the Minister, I have decided to adopt the clear and ignore the ambiguous. Furthermore, seeing as how the majority of the Committee members supported Bar-Ilan’s closure, I shall adopt their statements to this effect and order that the street be closed.

10. This interpretation of the Committee’s recommendations is erroneous. Suffice it to say that a reading of the Tzameret Committee’s report and its appendices—which stretch out over dozens of pages—clearly reveals the strong bond between the first and second part of its recommendations. There is no need to delve any further in order to see that the first part of the recommendation cannot survive without the second. The two are as one. Both are like limbs of the same body; amputating any part is tantamount to killing the whole. The Tzameret Committee’s recommendations constitute one whole, as Professor Galia Golan explained in her letter to the Minister dated November 3, 1996, which I cite below:

While I was prepared to sign the Committee’s report, this step was quite difficult for me, due to the decision to close Bar-Ilan Street during prayer times which, in practice, means the street’s complete closure on Sabbath. Nevertheless, as stated, I was prepared to sign by virtue of the “package deal”—the secular public would approach the Ultra-Orthodox in the spirit of compromise provided the latter would approach the secular in the same spirit. The street would be closed provided that arrangements would be made for public transportation in Jerusalem on Sabbaths in accordance with the public need and the status quo. It was also understood that certain cultural activities that do not involve the public desecration of the Sabbath, such as the supervised opening of the Jerusalem Theatre, be allowed.

Since the publication of the Committee’s report, it became clear to me that there was no—nor will there be—any “package deal.” No changes to public transportation or cultural activities on the Sabbath will be made. The Committee’s findings only lead to Bar-Ilan Street’s closure and will not bring about any additional changes.

I cannot shut my eyes and ears and convince both myself and others that the Committee’s conclusions are to my liking when I know that, in practice, they will not be implemented in their entirety. The secular public is once again making concessions, for the umpteenth time, without obtaining anything in return, despite the conditions spelled out by the Committee, which forms the basis of its conclusions. If this condition is not brought to fruition, the entire structure that the Committee attempted to construct, based on mutual consideration and tolerance, crumbles.

As such, so long as I am not in any position to enforce this condition and implement the Committee’s recommendations in their entirety and simultaneously, I will refrain from signing the report. I will be prepared to sign if and when it will become unequivocally clear to me that the decision to close Bar-Ilan Street during prayer times will only be implemented together with the rest of the Committee’s conclusions.

The Minister was entitled to say that the Tzameret Committee’s recommendations were not to his liking, due to Professor Golan’s statements and those of other Committee members, such as Dr. Tzvi Tzameret and Professor Eliezer Schweid, and that he therefore decided to ignore the committee report. However, I would think that the Minister was not permitted to assert that the conditions set out by the Committee are opaque and can be ignored, while also concluding that the majority of Committee members recommended Bar-Ilan’s closure. It is clear to all that some Committee members believe that the recommendation to close Bar-Ilan was contingent on the existence of public transportation on the Sabbath. Without the support of the condition the whole edifice collapses. How then can the Minister claim that his decision to close Bar-Ilan is based on the Committee's recommendation?

11. Furthermore, the Minister of Transportation discusses the Tzameret Committee's “majority” and “minority” opinions, in an attempt to prove that most Committee members supported the closure. In addition to the Minister’s statements cited above, he also asserted:

The majority’s recommendation regarding the closure of Bar-Ilan Street during prayer times on Sabbaths and Jewish holidays is conditional, the condition being that the closure is contingent on "arrangements being made to ensure the mobility of the secular public in accordance with its needs in the framework of the status quo."  

The said condition…is more opaque than transparent.

Three of the majority Committee members set out the condition in a manner lacking any factual basis whatsoever.

I for my part fail to understand the Minister’s preoccupation with the issue of majority and minority views. Indeed, while the matter of majority and minority may well arise with respect to bodies composed on a democratic or representative basis it has no place in a body assembled according to neither of these methods. The Tzameret Committee was not composed on a democratic or representative basis. The Minister of Transportation informed us that the Committee’s composition reflects a balance of opinions and views in the matter of religious-secular relations. Thus, the Minister writes that half of the Committee is “composed of religious individuals: two representatives of the Ultra-Orthodox community, two other religious representatives and four others defined as "not religious." Needless to say, this composition is not "democratic." If the committee is supposed to represent the interests of Bar-Ilan Street’s residents, the committee should have included a greater number of Ultra-Orthodox members. Conversely, if the starting premise was that the Committee should reflect the composition of Israel’s population, then it should have included a greater number of non-observant individuals.

In recommending that the Committee be set-up, we meant a committee capable of reaching a “social consensus between various communities.” We further added:

Such an agreement would quite naturally be premised on mutual patience and tolerance and on a long-term understanding regarding the future of Jerusalem. Rather then focusing solely on the issue of whether to close Bar-Ilan Street, it would relate to expected social dynamics and their effect on the secular-religious relations in the coming years. On the basis of this agreement, it would be possible to find long-term solutions for the various problems that these petitions raised.

See supra, para. 27 of Justice Barak’s opinion. And further on:

This lead to our proposal that a public committee be established, whose members would provide a balanced reflection of the spectrum of views and perspectives on secular-religious relations. The committee’s goal would be to strike a social covenant for secular-religious relations. The committee’s recommendations would be considered by government agencies, which would assist them in determining policy in traffic matters, including the potential closure of Bar-Ilan Street.

Id., at para. 28. While it may only take one side to torpedo an understanding or covenant, it takes two to create such a covenant. Here, one of the sides involved—the non-observant side—will only agree to such a covenant on the condition that public transportation on the Sabbath be made available. The other side does not agree to this. What then is the point of discussing majorities and minorities? Indeed, only a unanimous agreement or, in the alternative, an agreement reached by a clear and overwhelming majority, can lead to a social covenant. Clearly, unanimous agreement was not to be found, nor was there a clear and overwhelming majority. In the absence of agreement, calculating majorities and minorities is rather pointless.

12. It would appear, however, that for the Minister to base his decision on the Tzameret Committee’s report was tantamount to relying on a broken reed. Cf  Isaiah 36:6 [112] The Minister's efforts to rely on the committee's recommendations trapped him in a web of errors.

Interim Summary

13. Essentially, neither the Sturm Committee’s report nor the Tzameret Committee’s report and their respective recommendations can legitimize the Minister’s decision to close the street. In light of the Minister’s choice to base his decision on such a faulty foundation, the decision must be struck down.

14.  With these remarks in mind, let us further examine the Minister’s decision on its merits, this time ignoring both committees’ recommendations and limiting ourselves to the substantive considerations raised by the Minister in his capacity as Traffic Controller. We shall present the factors weighed by the Minister in reaching his decision and subsequently proceed to interpret, explain, and analyze.

The Decision on its Merits

15.  I have read the Minister’s brief dated November 6, 1996 very carefully. I have further read the brief of the Traffic Controller, Mr. Alex Langer, dated July 29, 1996. For all intents and purposes, the Minister’s brief is a continuation of Mr. Langer’s submissions, and both may be read as one. A reading of both these briefs teaches, without a shadow of a doubt, that the main consideration guiding the Minister in his decision was the threat that the local observant population’s feelings would be offended. In the Minister’s own words, as stated in his brief:

I have examined the Tzameret Committee’s report and the briefs submitted to this Court, as well as the Traffic Controller’s recommendations. The problem related to offending the religious population living on and around Bar-Ilan Street is both complex and most familiar—a matter which I have discussed repeatedly with the Traffic Controller, in the wake of his decision of July 10, 1996.

The additional material presented to the committee does not reveal any traffic-related reason that changes the balance between the harm to the religious lifestyle and between the infringement of the secular public's freedom of movement.

The Minister refers to the Traffic Controller’s decision of July 10, 1996—in other words, Mr. Langer’s brief of July 29, 1996—and clearly and unequivocally expresses the need to prevent any harm from coming to the feelings of the observant residents. Let us now read a few lines from Mr. Langer’s brief:

I have balanced between the freedom of movement of those asking to use this street on Sabbaths and holidays and the interest in safeguarding the feelings of the religious residents living on Bar-Ilan/Yirmiyahu Street and in its vicinity. In exercising my powers as Central Traffic Authority, I am authorized to take interests of a religious character into account when they affect a significant segment of the population.

The dilemma before me raises a conflict between legitimate interests. On the one side is the respect owed the Sabbath, as understood by a significant proportion of the local residents, living in the neighborhoods along the road. On the other side are the rights of all the city’s residents, in general, and the residents of the northern neighborhoods in particular, to use the existing and convenient road for their purposes.

The former demand that the road be completely closed to traffic on Sabbaths while the latter request that it remain open on Sabbath, as on any other day of the week.

On the one hand, there is harm to the religious sensibilities of a large population, for whom Sabbath traffic on its streets is extremely offensive. On the other hand, a significant number of people are inconvenienced by having to refrain from traveling along this road on Sabbaths and holidays. As noted, the additional travel time resulting from the street closure is a mere few extra minutes. It should be emphasized that we are not dealing with interference with the freedom to reach one’s destination. Rather, the restriction concerns the right to get from point A to point B a particular way. To employ a metaphor, a one-way street, or a dead end restricts the right to travel along it freely but does not constitute an infringement on freedom of movement since alternate routes permit motorists to reach their destination of choice.

In light of this, I believe that, at this stage, Bar-Ilan Street should be closed to traffic when the majority of the religious public is on its way to and from synagogue, times when the offensiveness of passing traffic is amplified.

To my mind, there is no need to elaborate: the Sabbath is what prompted the Minister of Transportation to decide as he did.

16. We have quoted the Minister and the Traffic Controller at length, and for good reason. We do so because the briefs of other respondents—this is the case regarding the petitioners in HCJ 5434/96—repeatedly raise arguments as to the pressing need to close Bar-Ilan Street on Sabbaths and holidays. The Court’s concern, however, is with the reasoning underlying the Minister’s decision. Thus, before jumping into the legal deep, we insisted on clarifying in which direction we were headed and what we were searching to find.      

17. The question before us is two-pronged. First, was the Minister (in his capacity as Traffic Controller) authorized to take into account the Sabbath observance factor and the local residents' religious feelings in making his decision to close Bar-Ilan Street? Second, if the Minister was in fact authorized to take these factors into account as he did, was he permitted to attach determinative weight to this consideration as he did? Is the Sabbath factor capable of outweighing all the other considerations that point to the need to leave Bar-Ilan Street open to traffic all week long, including on Sabbaths and holidays (with the exception of Yom Kippur, of course)?

Prior to turning our minds to this question, let us make the following general comment regarding the Minister’s decision, on its merits.

18. It would appear that the Minister’s decision is one that attempts to reconcile the irreconcilable. In deciding to close Bar-Ilan Street to vehicular traffic during specific hours and not others, the Minister carved the Sabbath to pieces or strips. An analogy may be drawn to one driving down a tree-laden road with the sun peering between the trees and leaves, intermittently lighting his way, alternating with the shade from the trees. A moment of sunshine, followed by a moment of shade, and again. In no time, the driver will become dizzy and in the future will want to drive down a different road in order to avoid this dizzying experience.

The manner in which the Minister has chosen to close Bar-Ilan Street—in pieces and strips—will prompt motorists to prefer alternate routes throughout the Sabbath. This is all the more true as the opening and closing hours of the street are a function of the entrance and exit of the Sabbath—times that, as we all know, change on a weekly basis. In fact, those asking that the street be closed throughout the Sabbath may be justified in arguing the Sabbath cannot be divided. Whatever the case may be with regard to that argument, it appears that the Minister’s decision will effectively result in the street’s closure throughout the Sabbath, at all hours. In effect, the street closure is a clear and certain prescription, leading to a single conclusion—Bar-Ilan Street will be closed to motorists and will appear closed throughout the Sabbath, from a little before sundown on Friday to the appearance of the first stars on Saturday night. This is how the Minister’s decision must be understood and as such it shall be examined.

19. At this juncture, we may turn our attention to the merits of the Minister's decision, bearing in mind that, from his perspective, the Sabbath factor was the determining consideration. In our opinion, the Minister exceeded the proper boundaries of reasonableness or, if you will, he exceeded his authority in deciding to close Bar-Ilan Street on Sabbaths and holidays. First, he attached excessive weight to the religious consideration. Second, he subjected the public domain to an improper arrangement. Third, he expropriated property that belongs to the public and turned it into private property. Let us now analyze these points, one by one, in order.

The Religious Consideration in an Authority’s Exercise of its Discretion      

20. In Meatrael [6], both Justice Or and I dwelled on the role of discretion in the decision of a government authority. I have but to repeat that which was said in that instance: Israel is a democracy under the rule of law. The fact that religious commandments are not the law in Israel, unless passed into law, is a supra-principle enshrined in our law. Even when a religious commandment is passed into law it is only binding by virtue of its statutory status. Our law also provides for freedom of religion and freedom from religion. An individual’s right to observe religious commandments is fully protected provided, of course, that he does not, in so doing, disrupt public order or violate the country’s laws. At the same time, an individual is entitled not to have religious commandments coerced on him against his will. Only a Knesset statute can order otherwise. After the enactment of the Basic Law: Human Dignity and Liberty even a Knesset statute is subject to the permanent restrictions prescribed by the Basic Law.

Our law is separate from religion and religious commandments are not binding unless enshrined in statute: “the principle of the separation between religion and state will guide and direct our laws. Only in accordance with a statute passed by the Knesset can a religious commandment be enforced. It may only be enforced in a manner that is both explicit and specific, in addition to being set out in primary legislation.” Meatrael [6], at 507. In other words: “considerations that have their source in religious commandments are not to be taken into account by government authorities unless the Knesset provides otherwise.” Id. For this reason, a city is precluded from forbidding the sale of non-Kosher meat or pork by virtue of the powers conferred on it by the Municipal Ordinance [Revised Version]. See HCJ 122/54 Axel v. Mayor of Netanya [75]; HCJ 72/55 Mendelson v. Municipality of Tel-Aviv/Jaffa [76]. Similarly, the Food Controller’s authority to forbid pig-farming was not recognized in Lazerovitch [5]. See also 1 A. Rubenstein, The Constitutional Law of the State of Israel (1997) [92]

This basic principle is found in the separation between religion and state. Of course, this is “an ‘Israeli-style’ separation: a separation involving a unification of sorts.” See Meatrael [6], at 506. The significance of the principle of separation of religion and state is that religion will not be imposed on the citizen and resident unless enshrined in statute. The religious system does not form the country’s law—its commandments are not the binding law of the state unless infused with the power of statute by the Knesset.

21. The aforementioned suggests that religious considerations cannot properly take center-stage or prevail over other legitimate considerations. In other words, taking into account religious considerations is deemed improper when these attempt to take center-stage among the considerations being weighed by a government authority. This was the case in Axel [75], Mendelson [76] and Lazerovitch [5]. See also Crim. A 217/68 supra. [12]. This is not the case when religious considerations merely play a secondary role, with all that that implies regarding the authority’s exercise of its discretion. While at times it may be difficult to distinguish between primary and secondary considerations, in general, we are capable of distinguishing between what is central and what is peripheral. Thus, for example, we will not hesitate to rule that the main objective of the Import-Export Ordinance [Revised Version]-1979 is economic, see Meatrael [6]; that the central goals of the Municipalities Ordinance [Revised Version] are general municipal objectives, rather than religious ones, see Mendelson [76] and Axel [75]; and that the Traffic Ordinance’s [Revised Version] primary objectives are traffic and transportation oriented goals.

Following this approach, it is possible to explain and interpret the rules set out in the Yeshurun Synagogue case, HCJ 174/62 [1] and the Baruch [2] case. In Yeshurun [1], the Court held that “motor traffic on the streets, on festivals and Sabbaths, disturbs the concentration of the worshippers of the Yeshurun synagogue, preventing them from praying comfortably.” Yeshurun [1], at 2677; that the “Yeshurun Synagogue is Jerusalem’s largest and most central synagogue, housing a large community of worshippers on Jewish holidays and Sabbaths,” Id., and that the inconvenience caused motorists due to the prohibition to drive near the synagogue is minimal. For these reasons, the Court agreed to close the streets near the synagogue on Sabbaths and Jewish holidays during the morning hours. The differences between the case at bar and that particular case are many. I will stress the following three differences. First of all, regarding motor traffic, King George Street and Shmuel HaNagid Street (the streets closed to traffic in the Yeshurun Synagogue [1] case) pale in comparison to Bar-Ilan Street. We were unaware of the exact number of vehicles passing through King George Street during prayer hours when the Yeshurun Synagogue [1] case was decided; we do know, however, that thousands of vehicles pass through Bar-Ilan Street.

Second, in the Yeshurun Synagogue [1] case, the city requested that the streets neighboring the synagogue be closed to traffic during the morning hours alone—not on Friday evening, on Sabbath morning, or at the end of the Sabbath, which, in practice, is tantamount to closing the street to traffic throughout the Sabbath. Thus, our case involves a full closure, rather than one during the morning hours. Third, the plight of the local residents was not at issue in Yeshurun [1]; here we know that closing Bar-Ilan would burden these residents. Above all, let us recall the following: the Yeshurun [1] case was decided in 1962 and, if we will try to look back, we will certainly remember what Jerusalem was like in those days, prior to the Six-Day War, and the number of vehicles to be found on Israel’s streets back then. Thus, in comparing the year 1962 to the year 1997, the differences between these two cases become clear.

Let us now turn to the rule in Baruch [2], the Bnei Brak case. While the case involved the closure of a road throughout the Sabbath, a careful examination of the reasoning underlying the decision reveals that the Court failed to comment on the closure’s effect on through traffic. The Court turned its attention exclusively to the plight of the local residents—both the Ultra-Orthodox and the non-observant. The Court addressed the harm caused the first group if the road would remain open to motor traffic and the harm caused the second group if it were in fact closed. In the words of Acting President Landau, Id. at 165:

In this case, we are dealing with the discomfort caused a limited number of residents, possessing about a mere fifty private vehicles…against the harm to the Sabbath rest of a significant population concentrated in the heart of the Ultra-Orthodox community.

Justice Vitkon’s statements, Id. at 167, were similar:

From the perspective of the number of local residents, those interested in the street’s closure on Sabbaths and holidays by far exceeds the number of those interested in freedom of movement, bearing in mind that the latter’s freedom of movement is not negated but merely restricted in a manner which does not pose any significant burden. This being the case, I am in favor of granting the petitioner’s request.

The case at bar, however, is quite different, if only for the fact that there are thousands of vehicles passing through Bar-Ilan Street. Baruch [2] by no means dealt with the same volume of through traffic. In truth, while the road closed in that instance was referred to as a “traffic artery,” the Court did not go any further to address the nature of the road in question or the effect that closing it would have on passing traffic. To this let us add and recall that the authorities made no effort to inquire into the number of those non-observant residents living on and around Bar-Ilan Street whom the closure would potentially harm. How can we then learn from the Baruch [2] case in this instance?

22. In Meatrael [6], the Court distinguished between the exercise of discretion regarding religious considerations and those involving human welfare, stating, at 507:

Considerations regarding the observance of religious commandments per se are not appropriate administrative matters unless prescribed by law. The considerations of man, qua man, however, are most legitimate. Such is the nature of democracy, in which the individual’s welfare and ability to flourish are of paramount importance. Where various segments of the population battle each other and the interests at stake are intertwined, the matter of setting priorities is self-evident. Weighing the interests inevitably leads to the need to decide between values, each pulling in its own direction. In balancing these interests we shall find it possible—and indeed our duty—to consider individual interests, or those of different sectors of the population, provided that we do not coerce the other into observing religious commandments. Religious commandments, qua religious commandments, shall not be imposed upon those who are not observant of them.

The Yeshurun [1] and the Baruch cases illustrate human welfare considerations being taken into account, following the Court’s finding that "the authority’s actions aimed at preventing harm to the religious sector will not cause significant harm to the secular segment of the public.” Meatrael [6], at 500. The same cannot be said in our case, where we are dealing with thousands of motorists served by Bar-Ilan Street.       

23. On the subject of freedom of religion and freedom from religion: the history of mankind presents countless instances of religious coercion, which directly infringe the freedom of religion. This was the case with orders to bow down to various images, to forcefully convert from Judaism to Christianity or Islam, to eat a certain proscribed food item. Freedom from religion, however, is quite different. An example of infringing one's freedom from religion is imposing a duty to pray against one’s will. Generally, however, infringements on freedom from religion are indirect and therefore often difficult to identify. It is therefore included in the general rights vested in the individual. Indeed, because of the difficulty in pinpointing an infringement of this sort, religious considerations may at times prevail over other conflicting considerations.  A case in point: Baruch [2], where a street closure forced motorists to take a longer road, and raised the question of whether the motorist's freedom from religion had been infringed. In Justice Vitkon’s opinion, Id. at 166:

The street closure constitutes religious coercion against this secular public, seeing as how the closure is not limited to prayer times at the local synagogue…the closure is imposed throughout the day.

By contrast, Justice Etzioni opined, Id. at 167:

I would not go so far as to say that the fact that some of the residents are precluded from using a segment of the road amounts to a certain degree of religious coercion, as my honorable colleague, Justice Vitkon, suggests. This is not a case of religious coercion as there is no absolute prohibition on travel on the Sabbath. Rather, we are dealing with a limited restriction, which does not harm the secular public’s sensibilities or its conscience, but merely inconveniences it.

In Yeshurun [1] the Court agreed with Justice Etzioni’s opinion, Id. at  2668, stating that the ban on traffic in the synagogue’s vicinity does not in any way constitute “religious coercion whatsoever, as the order in no way compels the petitioner to act against his conscience or views regarding religion.”

I, for my part, tend to agree with this last statement. To say that compelling a motorist to lengthen his road-time infringes his freedom from religion is, to my mind, stretching both language and substance. An observant Jew can be said to be devout, but it is difficult to say of one who is not observant that he is “devout” in his non-observance. In other words: the fact that individuals are barred from traveling in the synagogue’s vicinity during prayer times, which indirectly lengthens travel-time, constitutes coercion and infringes on the individual’s freedom to drive next to the synagogue whenever his heart desires. Even so, it would be difficult to deem this arrangement as infringing freedom from religion. An infringement of freedom—yes; an infringement of the freedom from religion—rather doubtful.

In light of these difficulties, freedom from religion is often “swallowed up,” so to speak, by an individual’s general right to freedom. It is for this reason that we prefer to speak of the authority’s power and the boundaries of the considerations that it is entitled to take into account. In other words, freedom from religion lays hidden under the doctrines of the authorities’ discretion and under an individual’s general right to freedom, as guaranteed by our country’s laws. This is the source of the aforementioned rules, according to which an administrative authority is precluded from taking into account religious factors as a principal consideration unless explicitly permitted or instructed by the legislature.

24. In Israel, every individual is entitled to the constitutional rights of both freedom of religion and freedom from religion. Subject to the Basic Law: Human Dignity and Liberty, or the Basic Law: Freedom of Occupation, an authority can only take religious considerations into account—as a primary consideration—by virtue of a statute. An administrative authority must be empowered by a statute—not by a regulation—if its wishes to take religious considerations into account. Neither may religious considerations be made primary considerations with regard to the enforcement of laws. See HCJ 1520/91 Vilensky v. National Labor Court [77], at 513. The Traffic Ordinance [Revised Version] was intended to regulate traffic and transportation arrangements. It was not meant to advance religious issues or matters of faith. Thus, if the Traffic Controller believes that traffic on Bar-Ilan Street on the Sabbath offends the religious sensibilities of the local observant residents, and decides to close the road to traffic throughout the Sabbath in order to avoid causing this offense, it is incumbent upon him to ask the Knesset to enact a statute authorizing him to do what he feels is necessary. The arrangement must take statutory form and only an explicit Knesset statute is empowered to authorize the Traffic Controller to act as he wishes. The individual’s right to freedom of religion and freedom from religion are protected in both the private and public realm. If society seeks to limit this freedom, it can only do so by Knesset legislation.

The Private Realm Belongs to the Individual and the Public Realm to the Public

25. As a general rule, the private realm belongs to the individual and the public realm to the public. A person’s home is his and his family’s; city streets belong to the entire community. This is also the case in relations between religion and state. Every person has the right to freedom of religion and freedom from religion in the private domain. The state and its emissaries must safeguard and protect this freedom using all means available to them. This is the case respecting the private domain and it is equally the case regarding the public domain. In both these realms the state will protect the individual’s right to freedom of religion and freedom from religion. By definition, this right signifies that no one will be religiously coerced.

26. Our concern is with these two sets of pairs: individuals and the community, in the private realm and in the public domain. Both these pairs relate to each other in certain ways. We can be sure of the following, subject to statute and constitution: neither an individual nor the community can impose on another in the latter's private domain. Similarly, in the public domain, an individual will not be allowed to impose his will on another or on the community. Our case raises a question with regard to the connection between the individual and the community in the public domain. Is the public entitled to force its religious customs on the individual who finds himself in the public realm, in their midst, and thus negate that individual’s right to freedom in the public domain? The Court touched on this issue in Meatrael [6], at 508, stating:   

The interests of the observant population’s are quite weighty, perhaps even determinative, within the privacy of their own homes.  However, the further one travels from his home, and the closer one is to touching the public domain—or on another’s private domain—or when one’s request involves his fellows’ rights, so too will the strength of one’s interests be weakened, as it will be balanced against the rights of his neighbor, in the latter’s public or private realm.

All this is to say that a heavy burden lies on the community whenever it seeks to deny the freedom of an individual situated in the public realm.

27. What is the private domain and what is the public domain in regard to freedom of religion and freedom from religion? All agree that a person’s home forms part of the private domain. Nevertheless, I believe that it is possible—and indeed proper—to expand that which is considered the private domain even beyond the four walls of one’s house and yard—though with great care. Take, for example, an observant neighborhood of alleys and narrow side streets upon which no stranger ever treads. It will not be an exaggeration to say that, with regard to the public desecration of the Sabbath, even those alleys between houses should be deemed to be the observant residents’ private domain.

Let us emphasize: at present, we are dealing with the expansion of the private domain only with regard to the public desecration of the Sabbath. We shall not, however, consider expanding the private realm in respect to any other matter involving the imposition of religious customs in the public domain. Thus, in regard to any other matter, the public domain remains public and the observant residents living in the area have the same rights as anyone else—no more. The same would apply to opening a pub in the center of a Muslim village or a movie theatre on the Sabbath in the heart of an observant neighborhood. See Meatrael [6], at 508.

All these matters may be examined from the perspective of the relevant administrative authority. We ask ourselves whether the authority acted within the confines of its jurisdiction and within the boundaries of reasonableness when it chose to expand the private domain with regard to the public desecration of the Sabbath, or when it forbade opening a pub or a movie theatre in a certain neighborhood. We, however, prefer to peer underneath the exercise of discretion and examine the relevant conflicting interests. The central issue is whether there is authority to coerce an individual to do—or refrain from doing—a certain act in the public domain, when the reason for coercion is rooted in religion.

28. The matter at bar does not involve the ordinary exercise of administrative discretion. Had we been dealing with placing a no-entry signpost for purely traffic-related considerations or with closing a certain roadway for construction purposes, we would be examining the Traffic Controller’s exercise of his discretion through the prism of administrative law. This, however, is not the case when the Traffic Controller turns to “extra-traffic” considerations, such as religious matters. In this instance, a constitutional consideration of the first rank comes into play. A constitutional consideration requires constitutional analysis and the ordinary rules of administrative law are not fit for the challenge. Whether we like it or not, we are within the realm of constitutional law and the Traffic Controller’s discretion is not the same as it would be understood by administrative law. Of course, constitutional considerations constitute the foundation of our entire legal system—they permeate it through and through. See 1 I. Zamir supra. [91], at 103. But, in our case, the constitutional aspects of the case at bar are prominent. As an aside: seeing as how we are dealing with a constitutional struggle, the fact that the Traffic Controller changed his mind becomes peripheral.

29. The individual’s “extended” home may be said to include his home’s surroundings. Do these surroundings include a street the likes of Bar-Ilan? To this end, the statements of the Traffic Controller, Mr. Alex Langer, in his letter of November 29, 1994, addressed to the Mayor of Jerusalem, are most pertinent:

In light of publications in the media and the situation on the street itself, I found it appropriate to apprise you of our position on the matter. The Ministry of Transportation considers Bar-Ilan Street to be a main traffic artery, connecting Jerusalem’s northern neighborhoods to the city’s center and south, every day of the week. It would be unthinkable to close this route to traffic on the Sabbath or on any other day. Arrangements to close streets on the Sabbath are only feasible on local streets, following a careful examination, and certainly not on important, central arteries.

Let us be well aware of the fact that Bar-Ilan Street is a “main traffic artery” and therefore “[i]t would be unthinkable to close this route to traffic on the Sabbath or on any other day.” So it was when the Traffic Controller spoke according to his conscience, employing sharp language such as “unthinkable” to illustrate his view. Let us offer our own view on this matter: the Traffic Controller spoke as he did without even being asked his opinion. His statements revealed that he had heard or read of the Sturm Committee’s intention to recommend that Bar-Ilan Street be closed on Sabbaths and holidays, which outraged him, prompting him to write to the Mayor as he did. When a person speaks frankly he exposes the contents of his heart.

The Traffic Controller felt the need to reiterate his position, and followed up his first letter with another, just a few months later, expressing his point of view unequivocally. He wrote the following to the Mayor of Jerusalem on November 3, 1995:

As I have already stated in my letter dated November 29, 1994, I will not agree to Bar-Ilan Street’s closure on Sabbaths and holidays, or on any other day.

The Traffic Controller took a similar stance on March 27, 1996, in a meeting between the Minister and Bar-Ilan’s residents. In summarizing the meeting, it was announced—in the Traffic Controller’s professional opinion, that Bar-Ilan Street is a central traffic artery which must not be closed on the Sabbath.

Later on, the Traffic Controller announced that he had changed his mind, a matter on which we have yet to comment. Nevertheless, the clear words spoken by him cannot be retracted, namely, that Bar-Ilan Street is a “main traffic artery” and that it would be “unthinkable” to have it closed on Sabbaths and holidays. These words are not mine—they are the Traffic Controller’s own. Moreover, these statements are quite significant seeing as how our case involves a constitutional matter of first rank. We are not dealing with the ordinary exercise of discretion as a routine administrative issue—such as a decision to reroute traffic to the right or left—but with a matter involving relations between religion and state. As we have seen, a matter such as this demands both constitutional and statutory attention.  The instant that matters of religion—of either religious freedom or coercion—are involved, we follow and live by statute and the constitution, not by the Traffic Controller’s instructions. For this very reason, as noted, the fact that the latter changed his mind will only be given minimal weight.

30. From the Traffic Controller’s statements we learn that Bar-Ilan Street is a “main traffic artery” that should not be closed—neither on the Sabbath nor on any other day. Applying these words to our own case, Bar-Ilan Street is the public domain, and not in the formal sense alone. For even those alleys between the houses are part of the public realm. But Bar-Ilan Street is the core of the public domain—in both name and substance. Bar-Ilan Street is by no means the private domain; it is public domain, in the truest sense of the concept. Each and every individual has an equal right in it: those living in its vicinity and those who do not. Bar-Ilan Street is the main road, the King’s Highway along which the King and his people shall travel. The Traffic Controller is not permitted to compel the individual not to use a road such as this.

31. In describing Bar-Ilan, the Traffic Controller did not use the phrase “main traffic artery” in vain. An artery is a blood vessel infusing man with life. Bar-Ilan Street is a main traffic artery. Thus, in deciding to close the street to traffic, the Minister infringed a constitutional principle. This principle provides that a government and administrative authority is precluded from restricting an individual’s freedom in the public realm for religious reasons. And so, government authorities renounce the freedom to take religious considerations into account unless specifically authorized, at which time these factors are to remain peripheral. For our purposes, the Minister of Transportation deviated from that which is permissible by attaching determinative weight to religious considerations and by imposing religious commandments on the public domain—on a central traffic artery belonging to the public.

Perhaps there will be those who will inquire what became of the rule in Yeshurun [1] or in Baruch [2]. To them I provide the following answer: at a certain point quantity becomes quality. At times, a little difference can mean a lot; a straw may break the camel’s back. The two precedents above dealt with a “small quantity.” By contrast, the case at bar, stated in these terms, involves a very large quantity. The Court in Baruch [2] stated that a mere fifty private vehicle owners were liable to be negatively affected by the closure—those fifty as compared to hundreds of thousands here.

On Expropriation and Individual Rights

32. The private realm is the individual’s. Neither an individual nor the public can infringe the individual’s right to his private domain unless explicitly empowered to do so by statute or by the Constitution. And what of the rights of the public and the individual in the public realm? They have the right to walk through the public domain, to drive through places intended for that purpose, to travel on roads and through fields—a right generally known as the liberty or freedom of movement. Nevertheless, the public domain is the public’s home, and each member of the public can use it provided that he or she behaves as one does in public—respecting their fellow’s right to do the same, while refraining from causing the public realm any harm. The liberty of movement in the public realm is subject to these rules.

How then does a person travel in the public domain? There was a time when people traveled on foot or rode on animals:

And Bilam arose in the morning and saddled his ass and rode with the princes of Moab. And God’s anger was kindled because he went: And the angel of the Lord stood in the way for an adversary against him. Now he was riding upon his ass, and his two servants were with him.

Numbers, 22:21-22 [113]. So it was in the days of old. Today, the car has replaced the donkey. Freedom of movement, however, remains the freedom to walk in the public realm, to ride donkeys or to drive cars. See Crim. A 217/68 supra. [12].

The value attaching to freedom of expression is of the highest order. Deputy President Ben-Porat stated that freedom of movement was equal in weight to freedom of speech, Dahar [23], at 708, and of course it is unnecessary to elaborate on the value attaching to the latter freedom. Moreover, freedom of movement is a descendant of freedom—freedom, as we all know, being of primal importance:

The right to life and to all things upon which life depends—the right to breathe, to drink, to eat—is the source of all rights. Second in rank is freedom.

HCJ 606/93 supra. [41], at 25. Such is freedom of movement and this is its place in the hierarchy of individual rights in the public realm.

My colleague, Justice Or, elaborates on the subject of freedom of movement, concluding that in our case, in the internal struggle between clashing interests, freedom of movement prevails. While I do agree with him, my agreement is accompanied by a certain feeling of discomfort. Why? Freedom of movement, like other recognized individual freedoms, is not crafted of one clay. Instead, under the umbrella of each and every freedom, we find a plethora of freedoms. Take, for example, freedom of expression; an accepted position is that commercial expression is not afforded the same degree of protection as political expression, which is more closely guarded. See HCJ 606/93 supra. [41]. This is also the case for freedom of movement. In other words, not every matter that may claim to fall under that heading is worthy of the same degree of reverence and protection. Freedom of movement, first and foremost, implies the individual’s primary personal freedom. As per section 5 of the Basic Law: Human Dignity and Liberty, “[t]here shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise” except in accordance with the limitations set out under section 8 of this Basic Law.

Alongside personal freedom we find freedom of movement, as it is commonly understood—the individual’s liberty to roam throughout the land, from top to bottom, from left to right, from one end to the other of the public realm. This is freedom of movement in all its wonder, in all its glory. In this context, let us, for instance, recall the provisions found in Regulations 109,110 and 125 of the Defense [Emergency] Regulations-1945, authorizing the Military Commander to restrict the individual’s rights in the public sphere.

Is this the freedom of movement at issue here? I would find it difficult to agree. First of all, the intended prohibition only applies to motoring on Bar-Ilan Street. It is permitted to enter Bar-Ilan Street provided one is traveling on foot. Secondly, the time it takes to travel down the alternate routes is not much longer than the time it would take to go down Bar-Ilan Street. In conjunction, these two factors render make the following conclusion practically inescapable: the issues raised in this case are at best peripheral to freedom of movement: far from its core, possessing no greater strength than any other peripheral right.

The matter, however, does not end here. The reason being that, in our opinion, there is no need to project the case as fitting exclusively within the doctrine of freedom of movement in the public realm. The matter should be understood more broadly, namely in the context of the individual’s rights in the public sphere, with freedom of movement being only one of its manifestations. Each and every individual in society has a vested interest in the “public domain”—a public property interest of sorts—which implies that society is prohibited from expropriating this interest unless expressly authorized by statute or by the Constitution.

A parable: a man owns a large ranch. In order to facilitate getting around his extensive piece of property, he paves roads and paths inside the ranch. The ranch is private property, as are the roads and paths. Suddenly, strangers, without having acquired any right in the property, disturb this man and prevent him from continuing to use the paths or roads on his farm. The man will take these strangers to court and win his case against them, seeing as how they trespassed on his property. The case will not raise the issue of freedom of movement—the freedom to move about the farm. Instead, the man will argue his right to his private property. That is the parable and here is its lesson: the individual has a public property interest of sorts in the public domain and no one has the right to infringe on this interest—this right, among other freedoms, implies freedom of movement.

33. And so, for instance, “designated property”, which the Property Law-1969, § 107 defines as “public property designated to be used for the public’s benefit,” including rivers, riverbeds, roads, railways and sewers. The law designates how such property is to be dealt with, “to ensure that the public is not driven from property intended for its benefit.” See Y. Weissman, Property Law 276 (1993) [95]. Furthermore, “the purpose of these rules is to ensure that this property will continue to serve the public interest for which they are intended.” Id. at 285. Needless to say, roads, by their very nature, are intended for the public’s benefit, Id. at 280—and for the public in its entirety, not just a certain part thereof. Thus, whoever deprives the public of its rightful property and grants it to an individual or to a certain segment of the public only—as did the Minister in this case—infringes on the public’s rights. Through his actions, the Minister expropriated from the public that which he was not permitted to expropriate. See also H. Klinghoffer, Administrative Law 141 (1957) [96].

This was also the case in ancient Roman Law. Indeed, ancient Roman Law classified goods that were not considered private into various categories, including Res Ominum Communes, which included air, running water, the sea and its beaches, and Res Publicae, which referred to property belonging to the nation as a whole, namely those goods owned by the state and designated exclusively for public use. See R.W. Leage, Roman Private Law 154 (3rd ed. 1961) [106]; Dr. S. Eizenstat, Roman Law, its History and Doctrine 143 (1954) [98], explaining that these goods “were at every Roman’s disposal and were extended special legal protection.”

This is also the law under the Anglo-American system. Since time immemorial, the law in England has been as follows:

In a highway the King hath but the passage for himself and his people.

1 Roll. Abr. [Rolle’s Abridgment, 1688] 392, cited in 21 Halsbury The Laws of England [108], at 78, n. 2. Justice Wills, in Ex parte Lewis (1888) [88], at 197, commented on the nature of the public’s interest in public roads:

[A] right for all Her Majesty’s subjects at all seasons of the year freely and at their will to pass and repass without let or hindrance.

The public’s right to passage on public roads has priority over the rights of adjacent property-owners; it has priority over it and overtakes it:

Speaking generally, the public have the right of free and unobstructed passage over the whole of a public highway…But the right of the public is a higher right than that of the occupier, and if the user by that occupier, though reasonable so far as the particular business carried on by him is concerned, in fact causes a serious obstruction to the public, then the private rights of the occupier must yield to the public rights, and the Court will interfere by restraining the continuance of  the obstruction.

Vanderpant v. Mayfair Hotel Co., 1 Ch. 138, 152-53 (1930) [89]. Hence, a public road belongs to the public not the individual and not to those residing in its vicinity. The public has the right to use the road as it wishes, at any time.

This is also the law in the United States. In cases where a public road passes through a residential neighborhood, the local residents are not given any priority over outsiders, as the New York Court of Appeals held in a widely cited case:

Bearing in mind the principle above mentioned that political subdivisions and municipal corporations hold the fee of streets for the benefit of the whole people, it follows that residents of a particular area in a town or village do not possess and cannot be granted proprietary rights to the use of the highways therein, in priority to or exclusive of use by the general public.

People v. Grant, 17 N.E.2d 542, 544 (1954) [86]. In NYS Public Emp. Fed. V. City of Albany, 527 N.E.2d 253, 255 (1988) [87], the Court further stated:

Historically, English highways were said to be the King’s and impeding their use was proscribed for his right was one of passage for himself and his subjects….Tailoring the English rule to democratic concepts, the common law in New York has restricted local regulation by impressing a public trust upon the streets. The right to use of the highways is said to rest with the whole people of the State, not with the adjacent proprietors or the inhabitants of the surrounding municipality.

And further on, at 256:

The general rule is clear: residents of a community have no greater right to use the highways abutting their land—whether it be for travel or parking—than other members of the public.

I believe there is no need to elaborate on the subject. Bar-Ilan Street is part of the public domain. As such, it belongs to the collective, the public—not to its residents or those living in its vicinity.

Finally, and closest to us, Jewish Law states as follows in the Mishna Baba Bathra 6:7 [114]:

He whose field is traversed by a public path and he closed it, substituting [another path] at the side, forfeits that which he has given, and [that which he has appropriated as] his does not pass into his possession.

In more modern words, as translated and interpreted by Shimon Ben-Shemen in his modern commentary to Tractate Baba Bathra 92b (1981) [115]:

He whose field is traversed by a public path [a road which the public had always used] and he closed it [the field owner appropriated segments of this public road] substituting another path [by carving out a different route for the public to use, at the edge of his field] forfeits that which he has given [to the public users], and his [the road that was originally public, and which the field owner wished to take from the public and make it his own] does not pass into his possession [both roads are deemed public].

From this we learn that the public roads belong to the public. The public, and each one of its members, is authorized to use these roads even if they happen to cut through an individual’s private property. An individual is prohibited from taking a public road and appropriating it even if he grants a part of his land to be used as an alternate road. One who attempts to appropriate a public road by carving out an alternate route in his field actually renders both roads public property.

A debate arose among the Rabbis of the Talmud regarding the interpretation of the Mishna. Why and for what reason is an individual not entitled to offer an alternate route in exchange? The public is in no way negatively affected by the exchange.  In response, three rabbis offered three different approach. See Babylonian Talmud, Tractate Baba Bathra 99b-100a [116].

The first approach: “Rabbi Zevid said in the name of Raba: It is a decree [that he is not allowed to substitute another path for the one already used by the public] lest he assign to them a crooked path.” In other words, there is a fear that the field owner may provide an alternate route of lesser quality than the original road.

The second approach: "Rabbi Mesharsheya said in the name of Raba: [Our mishna deals only with the case where] he gives them a crooked path." According to this approach, the Mishna is only discussing a case in which the alternate road is actually of lesser quality. If, however, the alternate route is of equal quality, it may properly serve to replace the original road.

The third solution: “Rabbi Ashi said: Any path [that runs] along the side [of a field] is crooked.” In other words, in practice, any alternate route that the field owner proposes to grant will actually be inferior. As such, he is not authorized to replace the original route.

In summary: the public domain may not be expropriated even if the public is offered an alternative in exchange.

For our purposes, the analogy is clear: the Minister of Transportation was prohibited from expropriating the right of the public to use Bar-Ilan Street. This rule applies a fortiori to our case—if an individual is precluded from expropriating a public road even if he grants a piece of his own property in exchange, all the more so in our case, where both roads—Bar-Ilan Street as well as the alternate route—are actually  public property.

34. The principle that “[t]here shall be no violation of the property of a person,” as per section 3 of the Basic Law: Human Dignity and Liberty may also apply to the individual’s right to public property. It is most appropriate that this principle—if not in language than in spirit—apply to the individual’s right to public property. An individual is not to be deprived of his property “except by a law befitting the values of the State of Israel, enacted for a proper purpose and to an extent no greater than is required.” Basic Law: Human Dignity and Liberty, § 8. An individual’s right to the public domain is similar to his right to his private domain.

35. In his affidavit, the Minister explains that the alternate road to Bar-Ilan Street will lengthen motorists’ journey by merely a few additional minutes. Therefore, the Minister contends, on one hand we have the Ultra-Orthodox residents who claim that allowing traffic on Bar-Ilan Street on the Sabbath gravely offends their religious sensibilities. On the other hand, according to the Minster, motorists will only be inconvenienced by a few additional minutes. Anyone, insists the Minister, would understand that there is no contest between these "competing" rights. I do not agree.

I would agree that the competing interests, as the Minister asserts, are not of equal weight, as less weight attaches to the matter of convenience than to the observant community’s offended feelings. This, however, is not the issue. Instead, the issue is whether the Traffic Controller was authorized to expropriate the public interest in public property. The answer is no—the Traffic Controller was not so authorized. Each and every member of the public has the right to pass through Bar-Ilan Street, unhindered, in accordance with his wishes. Bar-Ilan Street is public property and as such may not be expropriated, unless by statute.

Take, for example, a given central traffic artery. The Traffic Controller allots the local residents parking spots on land forming part of the road itself. This road is so wide that no one senses this expropriation. Would the Traffic Controller be permitted to act so? No one will defend his actions—public property is public property and no one is allowed to expropriate it, except under authorization of statute. How then is Bar-Ilan Street any different from this traffic artery? If traffic on Bar-Ilan Street, or any other street, would be prohibited for the purpose of installing pipes for public use, no one will deem this an expropriation—street-closures for such purposes are provided for in traffic laws. The consideration underlying the closure is traffic-related, pure and simple. This is not the case when religious factors come into play, and demand that a road be expropriated from the public for the benefit of a few.

36. For our purposes, the Ultra-Orthodox residents living on and around Bar-Ilan Street passionately object to the petitioners’ claims. They advance the following argument: why do the petitioners object to the closure of Bar-Ilan Street during prayer times when they agree to street-closures in their areas? Take Jerusalem’s Ben-Yehuda Street, which was turned in to a pedestrian promenade, Tel-Aviv’s Dizengoff Street, which is closed to traffic on Sabbaths, and Netanya’s Herzl Street, which becomes a pedestrian walkway on the Sabbath. As per their brief of July 26, 1996, submitted on behalf of the residents of Tel-Azra and Bar-Ilan/Yermiyahu Street:

It was possible to close Ben-Yehuda Street, a central traffic artery, and to turn it into a pedestrian promenade. It was also permitted to close Tel Aviv’s Dizengoff Street on Sabbaths, despite its being a central traffic artery, in order to allow for coffee house clients to quietly enjoy themselves. Nevertheless it would be “unthinkable” to close Bar-Ilan Street on Sabbaths even though the absolute majority of its residents demand this closure, as Sabbath traffic offends their sensibilities, disrupts prayers in the local synagogues and threatens the welfare and security of the neighborhood children, crossing the street throughout the day.      

Are the local residents asking for that much? All in all, they ask that their street become a pedestrian walkway on the Sabbath, or at least, as per the Sturm Committee’s recommendation, during prayer times.

Further on in their affidavit, these same residents point out that:

About one-hundred per cent of the residents in the area of Shmuel HaNavi Street and Yirmiyahu Street, up to Shamgar Street, are either religious or Ultra-Orthodox. Their sensibilities are to be heeded and their lifestyle respected, above that of those invading their neighborhood.

Do these respondents honestly believe that Bar-Ilan Street may be analogized to these streets, which they offer as examples? The difference between these stands out for all to see: while traffic was absolutely prohibited on Ben-Yehuda Street, and at certain times on Dizengoff and Herzel Street, these streets remained the public’s in their entirety, open for all members of the public to use and enjoy. The public domain remained public and the individual’s interest in public property remained unchanged. While the public will be precluded from driving through these streets, they will nevertheless be able to enjoy sitting on a terrace in a coffee shop on it. The matter of Bar-Ilan Street however, is as different as it can be. Once closed, that street is effectively expropriated in favor of the local residents, thereby turning the public domain into the domain of some of the public. Surely, the respondents do not seriously believe that that the inhabitants of the rest of Jerusalem’s neighborhoods will come take a stroll down Bar-Ilan Street.

37. A basic principle of law is that there is no expropriation without compensation, unless the legislature explicitly stated otherwise:

When dealing with legislation empowering the authorities to infringe on the citizen’s property rights, the legislation is not to be interpreted in a manner allowing for such harm without compensation, unless it is clear and obvious that the legislature intended to deny the right to compensation.

HCJ 150/69 Reich v. Head of the Antiquities and Museums Administration [78], at 209 (Cohen, J.). This was the law even prior to the enactment of the Basic Law: Human Dignity and Liberty and certainly remains so after the right to property has been enshrined in article 3 of this Basic Law, and the enactment of the limitation clause, in section 8 of the Basic Law. There is no expropriation without compensation. He who takes must give something in return—quid pro quo.

38. I felt it necessary to state this well-known rule in order to discuss the recommendations of the Tzameret Committee. The majority there recommended closing Bar-Ilan Street on Sabbaths and Jewish holidays during prayer times “provided arrangements are made to ensure the mobility of the secular public in accordance with its needs, within the framework of the existing status quo.” Each Committee member and party to the petition interpreted this last condition differently. Had the Committee been composed of seventy members rather than seven, we would have heard seventy interpretations of the decision. In his affidavit of November 6, 1996, the Minister disagreed with a number of Committee members—with Dr. Tzameret and Professors Schweid and Golan—regarding the meaning of the condition set out, opining that it is “more opaque than it is transparent” and that these three members’ interpretation of it “is totally unfounded.” Forgive me if I cannot agree with the Minister’s opinion.

39. I assume that there is no internal link between closing Bar-Ilan Street and instituting public transportation in Jerusalem on the Sabbath. Instituting public transportation on the Sabbath will not solve the difficulties created by Bar-Ian Street’s closure, just as not closing Bar-Ilan will not compensate for the lack of public transportation for Jerusalem’s non-observant residents who do not have access to a private vehicles. This in itself is a problem, yet unrelated to the matter of Bar-Ilan Street. This problem was examined in Professor Galia Golan’s writings prior to the Tzameret Committee’s publication of its report. See para. 10 supra.

The fact is that instituting public transportation on the Sabbath was intended to serve as an outstretched hand for peace within the context of the social covenant to be struck between the observant and the non-observant sector—give and take, a mutual exchange, a quid pro quo. This is how one shows good will to his fellow in order to foster trust. For this reason, I am not convinced that the Minister’s conclusion that instituting public transportation on the Sabbath “would have the effect of…disrupting the existing status quo” is correct. The matter of preserving the status quo is not relevant here. I for my part assert that we should focus on quid pro quo rather than on the status quo. Let us for a moment assume that instituting public transportation on the Sabbath would in fact “disrupt” the status quo ante. Does closing Bar-Ilan Street not also disrupt it? Indeed, as I stated in Meatrael supra [6], at 506, the “status quo” that everybody keeps referring to “is unlike any other status quo.” It is an “Israeli-style status quo.” And how is an “Israeli-style status quo” defined?

An Israeli-style status quo is an imprecise, nebulous and flexible concept: all those who invoke it will mold it in their image, to suit their purposes. It is like clay in its creator’s hands—it may be molded, stretched out, or constricted.

Id. at  506-07. What reason is there for us to discuss the status quo ante? Let us instead speak of a social covenant, a covenant struck in honesty and good faith, whereby each side both gives and receives. One party agrees to Bar-Ilan Street’s closure while the other consents to making public transportation available. Expropriation on the one hand, compensation on the other. Give and take, quid pro quo.

40. This was the reasoning underlying the proposal made by this Court, according to which Yam Suf Street would opened to traffic as a result of Bar-Ilan Street’s closure. The City of Jerusalem and the Minister of Transportation rejected the proposal, invoking the lack of any connection between prohibiting traffic on Bar-Ilan Street and permitting it on Yam Suf Street. In the Minister’s own words:

Professionals in the field and the Ministry of Transportation agree with the City of Jerusalem that there is no significant traffic connection between closing Bar-Ilan Street and reopening a segment of Yam Suf Street. Yam Suf is not an alternate route to Bar-Ilan.

Nevertheless, this response fails to address the Court’s proposal. Never did the Court contend that there was any link between the license and the prohibition. Speaking for myself, I can say that my own intention was to promote a showing of good will, to foster rapprochement between the parties, to extend an outstretched hand for peace. Thus, when examining the response submitted by the Mayor of Jerusalem and the Minister of Transportation, which claimed that “to the best of my understanding, as a Local Traffic Authority, it is appropriate that things be left as they are now with respect to the segment of Yam Suf Street in question,” we were at a loss as to why. And so, even the flicker of good will that the Court hoped to nurture was extinguished.

On the Independence of the Empowered Authority’s Exercise of Discretion

41. A short time following Israel’s independence, the Supreme Court set out a rule regarding the independence of an authority’s decision making powers. See HCJ 70/50 Michlin v. Minister of Health [79], at 323-24. While this ruling is widely cited in various contexts, our concern at present is limited to one aspect—an administrative authority’s decision that it took in accordance with instructions that it received from the Minister appointed over it.  In order not to stray unnecessarily, let us, for the moment, assume that the appointed Minister was permitted to assume the authority’s powers. See section 1 of the Government Authorities and Judiciary Ordinance (additional provisions)-1948, and section 42 of the Basic Law: The Government. The established law is that the authority may not base its decision on the Minister’s instructions. The authority is independent. Consequently, if it is shown that the authority decided as it did because the Minister instructed it to do so, the decision will be struck down, by reason of the fact that the discretion was not independently exercised. We all recall the Court’s decision in HCJ 74/51 The National Center of Contractors Associations v. Minister of Commerce and Industry [80]. In that instance, the appellants’ counselors argued that Mr. Noy, the empowered authority, based his decision on government policy rather than his own discretion, which would invalidate his decision. The Court rejected this argument, stating at 1550:

Having seen and heard Mr. Noy on the witness stand, we are left with the impression that he is a competent individual and we reject the argument that he merely carried out the will of others, without exercising his own discretion.

While it appeared that the government made an important policy decision, a decision of this nature does not bind the administrative authorities.  It was purely its good fortune that Mr. Noy happened to agree with its position.

42. This rule regarding the independence of the administrative authority— particularly from the responsible Minister—was the subject of extensive criticism. First among the critics is our distinguished teacher, Professor H. Klinghoffer, in his article An Empowered Authority’s Internal Guidelines—Their Validity, 3 Hod HaMishpat 38 (1948) [104]. This view was shared by many distinguished scholars, such as Professor B. Bracha in his book, 2 Administrative Law 604 (1996) [99] and Dr. Y. Dotan in his book Administrative Guidelines [99]. The Court found different ways to narrow this rule, to avoid it, even to ignore it. Even so, to the best of my knowledge, the rule has remained intact and Professor Bracha believes that “changing the rule requires legislative intervention.” supra. [98], at 102-03. I do note, however, that while I may agree with Professor Bracha’s words regarding the rule itself, I am not certain that I share his views on this last point.

43. In the case at bar, the Traffic Controller, in November 1994, at the time speaking freely, felt that it would be "unthinkable” to close Bar-Ilan Street on Sabbaths and holidays. Approximately a year and a half later, following conversations with the Minister of Transportation, the Traffic Controller changed his mind most drastically. So he declared before this Court, in response to our inquiries.

It is with great interest that I read the Traffic Controller’s brief. I listen to his oral explanation carefully. I further read the protocols from arguments before this Court. Subsequent to all these efforts, I was convinced that it is proper to reverse the so-called “independence” rule. I will not lay out the whole issue, but only part, in saying the following: when the Minister is permitted and authorized to assume an authority’s powers, he is equally allowed to direct that authority and instruct it as to how it is to decide. Judicial review will then examine the decision on its merits—not in view of the decision-maker’s identity.

 

A Final Word

45. I have said my piece, as have my colleagues, each in his own way. The majority opinion will be the decisive one. Such is the way of the law since time immemorial. Life, however, is stronger than a judicial ruling, particularly when it involves long-standing, dynamic human relationships. No society may exist absent tolerance and patience between men. Hatred and jealousy is a recipe for disaster. The Court sought to pave the way for a social covenant—however unsuccessfully. We can now only hope that in the end wisdom will prevail and end in a handshake. Our hope is not yet lost.

After These Words…

45. Having said that which I just did, I will add a few words that are for their part unnecessary to deciding this case. I would have refrained from making the following comments had some of my colleagues not first broached them. I refer to the matter of the Tzameret Committee’s recommendations regarding street-closures—both present and future.

46. The third chapter of the Tzameret Committee’s recommendations was entitled: “Recommendations Regarding Sabbath and Holiday Street-Closures Nation-Wide.” The text itself featured rules instructing us how to go about closing Israeli roads: a “local street” shall be closed in such and such a way; “an internal thoroughfare” this way; “an intercity road” that way, and so on. Each of the roads were given their own label; authorities responsible for ordering street closures were set out as were procedures for dealing with street closures; appeals boards were set up, as were times and dates. My colleague, the President, presents a few of these recommendations in paragraph 36 of his judgment and the rest are, of course, found in the Tzameret Committee’s report.

Until now, streets were closed one by one, individually—a few here a few there. Henceforth, the Committee proposes to write the book on

 

street closures, as though roads were paved, surfaced, and opened only to be closed. Under this line of thinking, street closures will no longer be an exceptional matter in isolated instances, as they were until now. Instead, street closures shall become the norm. And so it will be every Sabbath and every holiday.

47. For my part, I find it difficult to accept that such norms be set out in this country. Since the issue was not raised for the Court to rule on in this case, I will not elaborate on the matter, nor will I examine it on its merits. Suffice it to say that there is cause to believe that if we were to follow this path, both administrative guidelines and regulations would prove insufficient for this purpose. Only a statute can regulate the matter. There are those who would even deem that insufficient.

The Ruling

48. Were my opinion to be adopted, petitions HCJ 5016/96 and HCJ 5025/96 and HCJ 5090/96 would be granted and the Minister’s decision to close Bar-Ilan Street to traffic during prayer times on Sabbaths and holidays would be struck down. This would also include the revocation of

 

the order nisi granted in HCJ 5434/96.

Deputy President S. Levin

1. I had hoped that setting up the Tzameret Committee would allow us to foster a general social consensus between the various sectors of the population regarding Sabbath traffic, a consensus on the basis of which we could also resolve the matter of Sabbath traffic on Bar-Ilan Street in particular. Our hopes, however, were shattered, leaving no other alternative than for this Court to rule on a divisive political issue.

While the Court was dragged into making decisions of this nature against its will, it cannot dodge its responsibility or the need to decide.  Our decision is not a political one. It is a judicial ruling for the purpose of which we set aside our personal views regarding which measures should properly be taken in the political and social realm. Nor are we at liberty to opt for compromise, according to which practical solutions, such agreeing to the closure of a particular street on the Sabbath in exchange for the institution of public transportation on that day in other parts of the city. While these are solutions that could have been reached through negotiations, they are not possible solutions on the legal plain. The Court’s ruling is judicial as it is premised on judicial review of the decision of the Minister of Transportation, having assumed the Traffic Controller’s powers, as expressed in his brief dated November 6, 1996. The decision should be read bearing in mind the Traffic Controller’s decision of July 10, 1996 regarding Bar-Ilan Street’s temporary closure on Sabbath during prayer times. The Minister’s decision is an administrative one, and it is in this capacity that it is attacked before us today. The tools at our disposal for the purpose of examining the Minister’s decision are derived from administrative law and our examination shall be conducted on the following five levels:

                      (1)   The Minister’s decision and its components;

                      (2)   The various interests that the Minister was under a duty to take into account in making his decision;

                      (3)   The factual basis required for the purpose of determining the existence of each of the relevant interests and their respective scope;

                      (4)   Weighing the Minister’s decision both from the perspective of the relevant factual basis and from that of the balance between the various relevant interests and their scope;

                      (5)   Our operative decision.

The Minister’s Decision

2. The Minister of Transportation thought it proper to accept the part of the Tzameret Committee’s recommendations adopting the Sturm Committee’s decision to close Bar-Ilan Street to traffic during prayer times on Sabbath and holidays. The Minister offered his opinion regarding the “protocol for dealing with requests for street-closures”, according to which type B3 roads such as Bar-Ilan would only be closed when a reasonable alternative was available. The Committee recommended that, in matters concerning roads the likes of Bar-Ilan, the burden of making decisions of this sort be shifted to the local authority. In consequence, the local authority would decide whether to close roads to traffic in areas where the overwhelming majority of the population has expressed its wish to this effect, subject to the availability of a reasonable alternate route. Furthermore, the Committee set out guidelines regarding how to deal with requests to close roads, including the right to appeal before a public committee. On the basis of these recommendations, the Minister decided to close Bar-Ilan Street on Sabbaths and holidays.

The fact that the said recommendations were contingent on what was defined as an “arrangement to ensure the mobility of the secular public in accordance with its needs in the framework of the status quo” did not escape the Minister. Even so, he opined that these recommendations were opaque and that differences of opinion arose between some of the Tzameret Committee members as to their significance. Accordingly, the Minister decided to only adopt the first part of the Committee’s decision, unconditionally. To this end, the Minister consulted with the Traffic Controller, who supported the decision, provided that Bar-Ilan Street’s closure during prayer hours be contingent on Golda Meir Boulevard and the entrance to the city remaining open to traffic on Sabbaths and holidays, and that the lane reserved for public transportation on Jaffa Street be opened to all private vehicles on those days.

The Minister reviewed the Committee’s report and its appendices and discussed them with the Traffic Controller prior to making his decision of July 10, 1996, as per the brief he submitted to this Court and in accordance with the Traffic Controller’s suggestion. The Minister’s summarized his decision:

The additional material presented before the Committee and its recommendations reveal that there is no traffic-related justification for changing the weight attaching to the harm caused to the religious lifestyle of the residents as compared to that attaching to the infringement on the secular public’s freedom of movement on the road.

Even so, the Minister decided that Bar-Ilan Street would be closed to traffic on Sabbaths and Jewish holidays during prayer times, in accordance with the Sturm Committee’s recommendations.

3.  We elaborate on the Minister’s decision in greater detail, dwelling on the following three points: first, the Sturm Committee recommended, with Committee member Ya’acov Rubin dissenting, that Bar-Ilan Street be closed during prayer times. It also recommended that Yam Suf Street remain open as “that street serves a significant population from the neighborhoods of Ramat Eshkol and Givat Ha’Mivtar and serves as a central traffic artery for the residents of these neighborhoods.” The previous Minister of Transportation accepted the Traffic Controller’s professional opinion that Bar-Ilan Street was not to be closed by reason of it being a central traffic artery. At the same time, the Jerusalem City Council decided to close Yam Suf Street and other streets that the Sturm Committee recommended should remain open.

Second, within the context of the negotiations conducted between the parties, the Court suggested that the parties examine the possibility of reopening a segment of Yam Suf Street to traffic. The closure or reopening of Yam Suf Street was under the jurisdiction of the Local Traffic Authority, which was not so inclined, stating that professionals in the Ministry of Transportation accept that “there is no significant traffic connection” between closing Bar-Ilan Street and reopening a segment of Yam-Suf Street, as the latter is not an alternate route to Bar-Ilan.

Third, during her pleadings before this Court, Ms. Mandel was asked why her client, the Minister, decided to only close Bar-Ilan Street during prayer times. She replied that the purpose of the closure was to permit the Ultra-Orthodox public the opportunity to pray undisturbed. In response to our queries, Ms. Mandel further informed us that the Minister decided as he did following “an additional evaluation of all the relevant interests as well as the harm caused religious sensibilities of those residing in the street’s vicinity. Both this evaluation and the decision’s reasonableness need to be examined in light of the existing alternatives.” Moreover, Mrs. Mandel asserted that the Minister did not consider the issue of violence. However, if circumstances were to change and the violence were to continue, she assured the Court, the Minister would revisit his stance.

Finally, when the respondents were asked whether the Minister had access to data regarding the number of non-Ultra-Orthodox residents living on and around Bar-Ilan Street, they replied that exact data was not available to him. Instead, he “dealt with percentages” and in any event, the majority of the population residing in Bar-Ilan Street’s vicinity is Ultra-Orthodox. The fact that the Minister lacked any factual basis for determining the number of secular families liable to be harmed by his decision was also raised in the Court’s meeting of August 13, 1996.

4. The Relevant Interests

The authorities are permitted to weigh and take into account three central factors when deciding on the complete or partial closure of a given road. The first is a transportation-related factor, which includes the public’s interest in entering and exiting a particular road for passage and each individual’s freedom of movement. The second involves the feelings and sensibilities of the majority of local residents living alongside the road, if they request that it be closed to traffic, in order to ensure that their neighborhood's particular character is preserved, whether their reasons are religious or not. The third factor is the interest of the “minorities” residing alongside the road (and their visitors) who claim the unqualified right to reach their homes at all times and to travel from them in their vehicles undisturbed. Additional interests to be taken into account include access to security vehicles during emergencies.

The relative weight of these factors is not to be determined in advance in any given case. The more central the road, as in the case of a main traffic artery, the greater the weight attaching to the traffic factor. Nevertheless, these factors may be balanced in the event that reasonable alternate roads are available to the public. Case law also recognizes that the second factor as one that may be taken into account. Thus, for instance, in Baruch [2], at 163, the Court held that:

Ensuring the Sabbath rest, in accordance with the lifestyle of the interested public, is within the Traffic Controller’s authority to regulate road-traffic.

Hence, even the proper weight attaching to the second factor is likely to vary depending on the circumstances, as a function of the size of the population whom road traffic is liable to offend, and their interest in preserving their lifestyle of choice in their immediate surroundings.

Just as the balance between the first two factors varies, so too does the weight of the third factor depend on the circumstances. The centrality of the citizen’s freedom of movement, following the enactment of the Basic Law: Human Dignity and Liberty, and even prior to it, requires the guarantee that this right not be denied, even if other significant considerations justify restricting traffic on Sabbaths and holidays.

When do these remarks apply? When the residents of Bar-Ilan Street are involved (the third factor). In such a case, it is possible that the rights of those individuals for whom Bar-Ilan Street serves as a throughway may be limited in light of the rights of the majority of residents living along the road (the second factor), provided proper and reasonable alternate roads are available. However, I cannot accept the argument that if the neighborhood's character changes after a given individual moves in, and, because of this, restrictions were imposed on the road on which he resides, he must necessarily adjust to these restrictions even if they touch on his right to access his home or travel from it.

Bearing in mind these preliminary remarks, the issue in this case is whether the balance struck by the Minister between the conflicting interests cited above is appropriate.

5. At this juncture, let us elaborate on another matter in further detail. The conflict forming the subject of this petition lead to violent clashes between religious and secular, raising the question of whether allotting significant weight to the second interest is not tantamount to rewarding violence. It has already been held that although violence should certainly not be rewarded, the fact that there were violent outbursts does not negate our ability to consider the legitimate interests of those relevant elements irrespective of the violence. See Baruch supra, [2].

As the Court was informed, the Minister’s decision was not influenced by the violence. This having been said, since any judicial arrangement involving the balancing of interests depends on the presumption that the arrangement will be respected, the Minister will be compelled to revisit his position absent proper implementation.

Once again, it has been argued that the partial closure of a given road to safeguard the local residents’ feelings and sensibilities is likely to serve as a precedent for further closures, in places where the balance of interests resembles Bar-Ilan Street, in the end allowing determinative weight to be given to the second factor while ignoring the first or the third. Hence, we are prompted to inquire why Bar-Ilan Street’s residents should be given priority over the religious residents of other alternate routes, which perhaps were less vocal in invoking their rights. My answer to this is that the proper balance between the various elements must be preserved in every case and every limitation on the right of passage, if at all relevant, must be made contingent on the availability of appropriate, reasonable alternate routes.

6. The Factual Basis

The factual basis underlying the Minister’s stance is composed of the Tzameret Committee’s report and its conclusions, the Sturm Committee’s recommendations, and the Traffic Controller’s opinion submitted before the Tzameret Committee. In addition, the Minister consulted with his team of professionals. He also had access to petitions submitted by numerous citizens, religious schools, and the religious residents of Bar-Ilan Street.

The previous Minister of Transportation met with the residents of Bar-Ilan Street. The Minister had at his disposal the professional opinion of the Traffic Controller, Mr. Langer, according to which the Ministry was to treat Bar-Ilan as a main traffic artery, which connected Jerusalem’s northern neighborhoods to its center and south every day of the week. Mr. Langer further added the following pointed statements:

It would be unthinkable to close this route to traffic on the Sabbath or on any other day.

Arrangements to close streets on the Sabbath are only feasible on local streets, following a careful examination, and certainly not on important, central arteries.

Following the elections of May 1996, the present Minister of Transportation assumed his position and convinced Mr. Langer to alter his original decision by considering the full depth of the harm caused to the local Ultra-Orthodox resident's sensibilities. While the traffic-related data remained essentially unchanged, the decision itself was altered due to the fact that a new element, unrelated to traffic matters, was added. While the Traffic Controller apprised us of his reasons for the change, his explanation left us disappointed. The Traffic Controller should be a traffic expert—not an authority on the degree of consideration to be given to religious factors. There is no doubt that the current Minister’s decision is “ideological” in nature, and that his ideological stance differs from his predecessor’s. This having been said, to my mind, there is no flaw in a decision being “ideologically motivated,” provided that it respects the requirements set forth by law. Accordingly, the Minister was careful to respect the law when assuming the Traffic Controller’s powers. An examination of his decision reveals that he tried to balance the relevant elements. This is the mark of an appropriate course of action. Even so, it is incumbent upon us to decide whether the final result reflected an appropriate balance.

The Minister also based his conclusions on the Sturm Committee’s recommendations—a Committee set up by the City of Jerusalem. The Committee’s purpose was to reach a compromise solution, not necessarily identical to a judicial solution. Thus, the Committee’s recommendations are to be accorded weight even though the protocols of its sessions were not preserved. In retrospect, it became clear that following the previous Minister’s refusal to close Bar-Ilan Street in accordance with its recommendations, a few other streets, which the Sturm Committee had decided would remain open to traffic, were closed. As such, Bar-Ilan Street’s closure will not fully correspond to the Sturm Committee’s recommendations.

The solutions proposed by the Tzameret Committee members are oriented towards compromise and do not reflect a legal solution. From all the proposals made to him, the Minister chose to conclude that the Committee does not, under all circumstances, rule out the closure of Bar-Ilan Street. He was, however, not prepared to accept the conditions set out by a number of Committee members in this regard. The issue of whether the Minister was authorized to act as such shall be addressed below. It does appear that a certain amount of weight does attach to this conclusion as well.

Prior to making his decision, the Minister also commented on the Traffic Controller’s position, as set out in his last letter of June 11, 1996. The letter reveals that the traffic related data remained unchanged, save the fact that the number of motorists using Bar-Ilan Street on Sabbaths, as compared to weekdays, dropped slightly. In his letter, the Traffic Controller also instructed that Golda Meir Boulevard “is an essential link in the network of streets, available during the hours that Bar-Ilan Street is scheduled for closure,” and that, on Sabbaths, traffic in both directions will be permitted on Jaffa Street, as an additional lane will be opened to traffic, providing convenient access to Road no. One, and to Jerusalem’s northern neighborhoods.

Among all the material before the Minister, data regarding the secular residents of Bar-Ilan Street was nowhere to be found; nor were any recommendations made as to how their rights were to be safeguarded. While data of this sort is found in the petition of HCJ 5434/96, it naturally requires the Traffic Controller’s independent verification. Data regarding concrete harm to the secular residents resulting from Bar-Ilan Street’s closure is available with respect to two of the petitioners in HCJ 5090/96.

Additionally, the material in the Minister’s possession failed to address how the recommendations before him would be implemented in light of the threats and attacks made. The matter of how the threats and attacks influenced the decision itself and are liable to affect its implementation was not given any attention.

Was the Minister’s Decision Appropriate?

7. I feel it necessary to make the following two comments prior to proceeding under this heading: the first comment is that the issue here is not what decision the Court would have made but rather if there is cause to intervene with the Minister’s exercise of his discretion. In this vein, the Minister is given substantial leeway. Thus, it only proper for the Court to consider intervening with this discretion if the Minister ignored central factors which he was under a duty to consider, or if he drastically deviated from the proper relative weight attached to factors taken into account. The second comment deals with the fact that this present case does not give rise to the issue of the State of Israel’s duality as both a Jewish and democratic state, as the Minister saw fit to premise his decision solely on the need to safeguard the street’s residents’ right to pray undisturbed. Thus, the Minister may have also considered this factor if the offense involved members of different faiths, Muslim or Christian, for instance.

8. We have yet to define the term “traffic artery.” The “Guidelines for Planning City Streets,” published by the Ministry of Building and Housing and the Traffic Controller, and submitted to the Tzameret Committee, distinguished between a "intercity road," an “arterial road,” a “collector road,” and a “local street.” The “traffic artery” was defined as a “road found at a neighborhood's periphery, which connects various neighborhoods, directs traffic and reroutes it from the intercity highways to the network of collector roads." Although the Tzameret Committee debated whether Bar-Ilan Street was in fact a “traffic artery,” I am prepared to presume that it is such. The current Traffic Controller referred to it as such and it corresponds to the definition cited above.

Under these circumstances, the issue of whether there is a proper balance between the traffic element and the local residents’ sensibilities arises. Whoever opines that the first element always prevails over the second will believe that the order nisi should be made absolute. To my mind, while significant weight attaches to the fact that a given street meets the definition of “traffic artery,” this weight is not determinative. A “traffic artery” is by no means untouchable and it is possible that the authorities will give importance to safeguarding the right to pray and worship unhindered even if the street involved is a “traffic artery,” provided that the weight attached to the latter factor is not excessive. In the case at bar, two public committees recommended that, under certain conditions, it would be possible to close Bar-Ilan Street during prayer times. Although their recommendations were submitted in the public realm, from a legal standpoint the Minister was nonetheless authorized to determine that circumstances justifying limiting traffic on Bar-Ilan Street could in fact arise. I do not believe that this determination exceeds the legitimate bounds of the Minister’s discretion.

The next step is to analyze the proper relationship between the first and second factor. In light of Bar-Ilan Street’s centrality from a traffic perspective, the Minister is only authorized to limit traffic on the Sabbath in a limited fashion, not exceeding what is necessary and taking into account the alternate routes available to the public. The Minister consulted with the relevant traffic professionals, who also considered the “religious” factor. He concluded that imposing traffic restrictions is possible from a traffic standpoint and justifiable only during specific hours, rather than throughout the Sabbath. I agree that, in so doing, the Minister “stretched” the permissible to its limits. As a result, any change in circumstance is likely to necessarily alter his decision. This having been said, generally speaking, I have concluded that, from an administrative point of view, this exercise of discretion is not to be struck down, as it was exercised bearing in mind both the first and second factors. In any event, the petition in HCJ 5434/96 should be denied.

Even so, it appears that the Minister failed to consider the interests of the local secular residents, for whom Bar-Ilan Street is more than a throughway, as it is the road to their homes. Accordingly, in my opinion, their interest must prevail over the right of the majority of the locals to pray undisturbed. Not only was data regarding the number of secular residents, some of whom may be deemed the “silent minority," not at the

 

Minister’s disposal, but these residents were not even guaranteed access to their homes during the hours that the traffic limitations were scheduled to be in place. As has already been explained above, I cannot accept the argument that it is incumbent on the secular residents to change their

 

lifestyle and way of reaching their places of residence following a change in the character of the street.

Needless to say, the Minister’s decision contained two presumptions. First, the Minister assumed that violent elements would not sabotage the decision’s practical application and, second, he assumed that alternative routes would remain available to the public. It is sufficient for one of these presumptions to falter for the entire decision to collapse.

9. The Operative Result

For the reasons detailed above, I join in the President’s opinion.

 

Justice E. Mazza

Like my colleagues, the President and Deputy President, I too believe that our review of the Minister’s decision to order the partial closure of Bar-Ilan Street should not give rise to a question of ultra vires but, rather, should be exclusively limited to the matter of the decision’s reasonableness.

Our premise is that the Traffic Controller has the authority to order the closure of a street to traffic on the Sabbath and Jewish holidays, in order to safeguard the religious lifestyle of the local residents, when the street scheduled for closure cuts through the heart of their neighborhood. This authority is not limited to “internal” streets. It equally applies to traffic arteries. Accordingly, despite the fact that Bar-Ilan Street is, first and foremost, a “traffic artery,” the Traffic Controller has the authority to order its closure.

This having been said, I concur with the conclusions of my colleagues, the President and Deputy President, that the Minister’s decision in the case is blatantly unreasonable and must therefore be struck down. The President’s reasoning, with which the Deputy President concurs, is also acceptable to me.

However, in order to ensure that my position is perfectly understood and in order to further emphasize that which appears to be worthy of particular emphasis, I wish to comment on the three following subjects: the Minister’s erroneous reliance on the Tzameret Committee’s recommendations, the fact that the Minister ignored the needs of the secular minority constitutes sufficient reason to strike down his decision, and the significance of his assumption of the existence of alternate routes to Bar-Ilan Street.

The Tzameret Committee’s Recommendations

2. The Minister’s decision was rendered on the heels of the Tzameret Committee’s recommendations and anchored in the adoption of part of the Committee’s recommendations. As understood by the Minister, this recommendation corresponded with those made by the Sturm Committee. In so supposing, the Minister followed a path, which, to my mind, lies beyond the legitimate array of options proposed by the Tzameret Committee.

In its recommendations, the Tzameret Committee distinguished between setting out a general arrangement to deal with requests to close streets and formulating a concrete position regarding the conditions for closing Bar-Ilan Street. Between these two options, there was no middle ground. The institution of a general arrangement, as per the Committee's first recommendation, is of a legal character. However, the Committee’s stance with respect to the conditions to be met for closing Bar-Ilan Street merely reflected an attempt to present a compromise proposal of a public-political nature, probably meant to provide a rapid, out-of-court solution to a difficult and painful social problem.

 In light of this distinction, it was incumbent on the Minister to relate to the Tzameret Committee’s recommendations in only one of two ways. On one hand, the Minister could have informed the Court of his intention to set up a general arrangement to deal with requests to close roads and to prescribe an arrangement identical or similar to the one that the Tzameret Committee proposed. The Minister then could have declared that he would revisit the matter of Bar-Ilan Street’s closure in the context of this general arrangement. On the other hand, the Minister could have agreed to base his decision regarding the closure of Bar-Ilan Street on the Tzameret Committee’s recommendations. In my opinion, it would have been best for the Minister to opt for the first alternative. Nevertheless, he was entitled to select the second.

The Minister, however, chose a third way. On the one hand, he took it upon himself, with the assistance of his Ministry’s professionals, to examine the Committee’s recommendation regarding a general arrangement for street closures. On the other hand, he decided to close Bar-Ilan Street immediately. The Minister based this last decision on the assumption that “in light of the data presented to it, none of the Committee members excluded the possibility of closing Bar-Ilan Street on Sabbaths and holidays;” and that only a minority of the Committee members understood the decision to close of the street as predicated on “provided arrangements are made to ensure the mobility of the secular public in accordance with its needs.”

In so deciding, the Minister erred, as the condition in question was in fact part of the majority’s recommendation, reached with the support of five of the Committee members. The report that the majority submitted reveals this to be so. As such, the recommendation should have been accepted or rejected as is, without addressing the differences of opinion that later emerged among the Committee members. I, for my part, am convinced that the adoption of only part of the Committee’s recommendations—a Committee which, let us recall, was only established for the purpose of proposing a potential solution to a pressing social problem—cannot be deemed a proper administrative decision. This being the case, I join in my colleague's, Justice Cheshin, criticism of the decision, set out in paragraphs 10-11 of his judgment. To my mind, the significance of this is that the Minister’s decision must be examined on its merits, without any reference to the Tzameret Committee’s recommendations and, even more so, to the recommendations of the Sturm Committee. Indeed, an examination of this nature was conducted in the opinions of the President and the Deputy President.

Ignoring the Needs of the Secular Minority

3. In deciding whether to exercise his power to close a street, the Traffic Controller is confronted with two conflicting considerations—the “traffic” considerations, on the one hand, and the “religious” factor on the other.

Accordingly, exercising this power to close streets is contingent upon finding a suitable balance between the public’s traffic-related interest in using Bar-Ilan Street and the local residents’ religious interest in the street’s closure. In this balance, the most significant weight will always attach to the traffic interest. As such, in the absence of a reasonable alternative, capable of meeting the motorists’ traffic needs, the Traffic Controller must refrain from closing the road. The religious factor alone cannot be determinative.

This rule applies to all decisions of this nature, whether regarding a local neighborhood street or a road serving as a traffic artery. Even a local street is a public road, and should not be treated like the local residents’ private property, not even as the property of the “majority” of its residents. The difference between an internal street and one constituting a traffic artery lies exclusively in the size of the public likely to be harmed by its closure. Thus, closing an internal neighborhood street, which goes through a religious neighborhood, will interfere with the transportation needs of the secular minority residing there, including the needs of the friends and relatives of those residents. Clearly, however, closing a traffic artery negatively affects the entire public by interfering with their transportation needs. As such, particularly significant weight will attach to traffic-related considerations.

This having been said, a quantitative comparison is liable to mislead. We must recall that the needs of the general public do not necessarily correspond to the transportation requirements of the local residents. This is particularly true when dealing with a road that is both a central traffic artery and a local access-way. The closure of such a road is contingent on the availability of a reasonable alternate route that will both serve the public as a whole as a traffic artery, and also provide the residents with local access.

Bar-Ilan Street, as defined in the Minister’s decision, constitutes a central traffic artery which also provides direct access to adjacent land users. It therefore follows that we are in fact dealing with a road that is both a traffic artery and a local access-way. Closing such a road is contingent on meeting the transportation needs of all those served by it. In his decision, the Minister pointed to roads that, in his opinion, constitute a reasonable alternative to the arterial traffic on Bar-Ilan. However, as his decision’s content indicates, the Minister failed to ascertain the needs of the local secular population, nor did he propose any alternatives capable of meeting their needs. While no data was submitted regarding the size of the local secular population in question, this, in my opinion, is unimportant. For the purposes of this decision, I am prepared to assume that an overwhelming majority of these neighborhoods are in fact Ultra-Orthodox and do wish for the street’s complete closure on Sabbaths, and that the number of secular residents is negligible. Even so, the balance of considerations requires that a suitable alternative for the needs of this small minority be found prior to closing Bar-Ilan Street. As my colleague, the President, has rightly held, this flaw in the Minister’s decision is sufficient to require that it be struck down.

The issue of whether the needs of the local residents lend themselves to alternative solutions is for the Minister to decide. Consequently, in the absence of concrete alternatives, it is incumbent on the Minister to consider normative alternatives, such as instituting an arrangement that would permit allowing traffic to pass through during the times that the road is closed, if a request to this effect is submitted by a permanent local resident of one of the surrounding neighborhoods. So long as a concrete alternative, capable of meeting the needs of the local residents, is not found, or a normative alternative is not established, there is no basis to support a decision to close Bar-Ilan.

The Existence of an Alternative to a Traffic Artery

4. The Minister’s decision to order the closure of Bar-Ilan Street during prayer times included the following condition:

For as long as the road is closed, Golda Meir Boulevard (The Ramot Road) shall remain open, as will the entrances to the city.  A lane for private vehicles shall also remain open on Jaffa St. on Sabbaths and Jewish festivals.

This condition is based on the presumption that the roads named provide a suitable alternative to Bar-Ilan Street as a traffic artery. The Minister’s presumption relies on findings produced by the examinations conducted: each of the above roads constitutes a detour around Bar-Ilan Street. Driving through those streets lengthens the trip in each direction by approximately two minutes at most. From a purely traffic-related perspective, I judge these alternatives acceptable in that they are capable of providing a proper detour for Bar-Ilan traffic.

The matter, however, does not end here. Alternate routes must be selected according to a standard set out for this particular purpose. Judging from the evidence submitted to the Court, it does not appear that the Minister set out such a standard for choosing these roads. In other words, the roads selected to serve as alternate routes were not examined from any other aspect save their length in comparison to Bar-Ilan’s. An important issue, which was not examined, is whether the population residing along these roads is also composed of individuals whose religious sensibilities are liable to be offended in a manner identical to the harm that prompted the Minister to justify his decision to close Bar-Ilan Street. Quite simply, had this examination been conducted, and revealed that those residing along some or all of the roads selected as alternate routes are overwhelmingly Ultra-Orthodox, the Minister would have been compelled to revisit his choice and reevaluate whether these alternatives are in fact suitable in light of these circumstances. It would be unthinkable for the Minister to reroute a massive amount of traffic to these alternate routes while risking that the local residents, like their counterparts on Bar-Ilan Street, will in turn demand that their Sabbath observance be granted the same respect as their neighbors along Bar-Ilan.

My colleague, the President, distinguishes

between streets that go through the heart of an Ultra-Orthodox neighborhood—where  thousands of Ultra-Orthodox individuals reside on both sides of such streets—and roads that are found at the neighborhood’s periphery.

See supra para. 96 of his decision. Indeed, this difference may be cause for distinguishing between Bar-Ilan Street and other roads that merely border on or are adjacent to Ultra-Orthodox neighborhoods. This possible distinction, however, was only set out in the President’s judgment, while the Minister’s own briefs do not even mention it.

At first, I believed that even a defect of this sort is cause for striking down the Minister’s decision. Eventually, I became convinced that I could join in the President’s conclusion holding that, if and when one of the roads cited as alternate routes in the present decision will be itself scheduled for closure, that specific decision shall be examined on its own merits. Of course, a decision of this nature will necessarily reopen the issue of Bar-Ilan’s closure itself.  The President’s conclusion is based on the assumption that:

it is clear that, as soon as we consider the possibility of closing the alternate route, the issue of the original route’s closure resurfaces. Our concern is with complementary solutions. It is possible to partially close Bar-Ilan Street provided that an alternate route remains open to traffic on the Sabbath. However, the moment that the alternate route is closed to traffic on Sabbath, Bar-Ilan Street must be opened.

Id. Let me offer two additional points in support of this position.

First, I emphasize that the Tzameret Committee’s holding was that “a road deemed to serve as a reasonable alternative to a closed street shall

 

not be closed unless a reasonable alternative, capable of replacing both the first road and the second, is found.” The second is the following clarification: the Minister may one day find himself in a position where he cannot refuse to close one of the alternate routes to Bar-Ilan without violating the balance struck between the interests of the local populations and, for reasons of equality—equality between different Ultra-Orthodox communities—will be equally unable to reopen Bar-Ilan Street. In such a situation, the Minister would not be authorized to order the closure of the alternate routes. Rather, he would be obliged to reopen Bar-Ilan Street, while also leaving the alternate route open to traffic. And so, the failure to set a standard for selecting alternate routes as part of the administrative procedure for dealing with a request to close a road engenders numerous difficulties.  The Minister would be well-advised to take advantage of the delay granted him by our decision in order to fill this missing link.

5. Accordingly, and given my agreement with the President’s other conclusions, I hereby join in his opinion.

Justice D. Dorner

1. I agree that the petition should be granted, as per the opinion of my colleague, Justice Or.

I believe that that the Minister of Transportation's decision is unreasonable, as stated in my colleague's opinion. In addition, however, the decision should be deemed invalid simply because it fails to conform to his statutory authority.

2. As noted, the Minister of Transportation, using the discretion granted to him by the Traffic Controller, ordered Bar-Ilan Street to be closed to traffic during prayer times on Sabbaths and Jewish holidays. The Minister made the closure contingent on the fact that Golda Meir Boulevard and the entrances to Jerusalem remain open. Likewise, the Minister premised Bar-Ilan’s closure on the fact that the lane normally reserved for public transportation on Jaffa Street would be opened to private vehicles.

Truth be told, Bar-Ilan Street is not really a “street.” Rather, it forms part of a central traffic artery, segments of which are referred to by different names—starting from Yirmiyahu Street, going through Bar-Ilan and Harel Brigade Streets all the way to Eshkol Boulevard. A mere glance at a Jerusalem city map reveals that this route forms the sole connecting route directly linking the entrance to the city, Jerusalem’s northwest, and its northeast.

The primary alternative selected by the Minister is not an intersection comparable to the one that was closed. Rather, these two connected roads allow motorists to bypass the closed road. This alternative route begins at the city’s northwestern entrance in the “Mei Niftoah” area connecting to Eshkol Boulevard via Golda Meir Boulevard, and cuts through the heart of the Ultra-Orthodox neighborhoods of Kiryat Shva,  Kiryat Balaz, Kiryat Tzanz, Ezrat Torah, Tel-Azra and Sanhedria. Violent demonstrations have occurred in this area in the past against Sabbath traffic. Let us also emphasize that along the Jaffa Street alternate route, particularly in the area around HaTurim Street, an Ultra-Orthodox population also resides.

3. The Traffic Controller, in his capacity as the Central Traffic Authority, is the authority empowered to establish traffic arrangements, particularly street closures. His authority derives from Regulation 17 to the Traffic Regulations. The Traffic Regulations were regulated by virtue of section 70(1) to the Traffic Ordinance [Revised Version], providing:

The Minister of Transportation is permitted to enact regulations regarding:

                      (1)   Traffic arrangements, and rules for the use of roads by vehicles, pedestrians and others;

Does this provision allow Bar-Ilan Street’s closure for the purpose of preventing harm to religious sensibilities?

It is no secret that an administrative authority is held to exercise its discretion exclusively for the purpose behind the empowering statute. To this end, Justice Barak’s comments in HCJ 953/87, 1/88 supra. [4], at 324, are most appropriate:

A government authority is not free to set goals for itself in whose name it is permitted to exercise its discretion. Statutory discretion must be exclusively exercised within the framework of the statute’s objective. Indeed, even if the statute explicitly provides that the discretion is absolute, this still implies the authority’s duty to pursue the objectives of the law.

See also 2 I. Zamir, supra, [91], at 744-45.

Thus, various administrative orders and decisions were struck down on the basis of this principle, including, for example, the Food Products Supervision Order (Pig Farming)-1954, adopted for religious reasons under a statute whose purpose was to ensure distribution of food products in times of emergency. See Lazerovitch [5], at 55. Similarly, we struck down a decision making the grant of permits for importing food products to Israel contingent on obtaining kosher certification, a decision which was made under legislation with an economic purpose. See HCJ 231/63 Retef, Food Supplies v. The Minister of Commerce and Industry [81]. We also struck down a municipality’s decision to change a zoning plan with the intention of preventing a Christian Center from being established, see HCJ 392/72 Berger v. The District Committee for Planning and Building, Haifa [82], at 772, and invalidated a decision to proscribe the import of non-kosher meat, adopted under a statute having economic purposes. Meatrael [6], at 503-04, 509.

This Court has equally held that a municipality, empowered by statute to regulate municipal matters via by-laws, cannot enact such provisions in order to further religion. As such, the Court has held that a municipality may not advance religious goals unless it was authorized explicitly by statute. Thus, for instance, a by-law prohibiting pig farming and the sale of pork for religious reasons was struck down. Mendelson, supra [76], at 752. Similarly, a municipality’s refusal to grant a butcher shop a permit due to the fact that it sold non-Kosher meat was struck down, Axel, supra [75], at 1532. A gas-station owners’ conviction for opening their business on the Sabbath, in violation of a municipal by-law was overturned. Crim. A 217/68, supra [12]. This approach is clearly reflected in President Olshan’s comments, in Axel, supra [75], at 1531-32:

The conflict is between those who perceive the prohibition regarding the eating of pork as holy or as inextricably liked to our national identity and those who believe otherwise. On the heels of this conflict, we find another difference of opinion—the argument between those who think it right to coerce this prohibition upon the whole of society and those who believe that there is no place for coercion of this nature in a democratic state and that the matter of observance should be left to each and every individual’s own conscience.

This problem is a general and national one, not particular or limited to a specific location. Its resolution is left to the national legislature’s exclusive authority, unless the legislature finds it appropriate to delegate its decision-making authority in this matter to the local authorities.

A democratic regime is characterized by the fact that the power to limit individual freedom is derived from the People’s will. Accordingly, this power rests with the central institution authorized to speak and decide in its name; namely, the legislature.

The power to limit individual freedom, vested in the legislature, also includes the authority to empower others, such as municipalities, ministers, administrative authorities and so on and grant them the power to limit individual freedom within specific jurisdictions. In such cases, the empowered authority indirectly draws its power from the People’s will.  This being the case, it is incumbent on the legislature to bestow such powers explicitly and unequivocally, particularly when the matter involves a problem of national proportions rather than a local one. In cases of this sort, the granting of such powers is not to be presumed unless the intention to bestow such powers is obvious and clearly reflected in the statute’s formulation or in its clearly set out objectives.

4. On the heels of this ruling, which held that imposing restrictions on human rights for religious reasons is within the exclusive purview of the legislature—the Knesset—certain statutes seeking to balance between various considerations in this area were passed.

Thus, for instance, the Local Authorities Law (Special Empowerment)-1956, authorized the local authorities to restrict or prohibit the sale of pork and pork products for consumption within their jurisdiction through bylaws. However, the consumption of pork, its import and export or its sale in restaurants was not prohibited. And so, the Law for Amending Municipal Ordinances (number 40)-1990, empowered a municipality to prohibit places of entertainment from opening on Sabbaths and Jewish holidays within its jurisdiction due to religious tradition. Most recently, subsequent to the Court’s striking down the government’s decision to prohibit the import of non-kosher meat in Meatrael I [6], an “override clause” was incorporated into the Basic Law: Freedom of Occupation. This clause allowed for the Meat and Meat Products Law-1994, to be enacted. While this statute proscribes the import of non-kosher meat to Israel, the sale of such meat in the country is not prohibited. A petition attacking this statute’s validity was rejected and its constitutionality was upheld. See HCJ 4676/94 Meatrael Ltd. v. The Knesset [83].

5. The above case law distinguishes between establishing arrangements regarding religious matters—which is within the Knesset’s jurisdiction—and between taking individuals' interests into account, including their religious sensibilities, a matter that can fall within the province of an administrative authority. Parallel to this distinction is the line drawn between the private and public domain, a point made by Justice Cheshin in Meatrael I [6], at 508:

The interests of the observant population’s are quite weighty, perhaps even determinative, within the privacy of their own homes.  However, the further one travels from his home, and the closer one is to touching the public domain—or on  another’s private domain—or when one’s request involves his fellows’ rights, so too will the strength of one’s interests be weakened, as it will be balanced against the rights of his neighbor, in the latter’s public or private realm.

Indeed, within the private domain, individuals and families are free to determine how to live their lives, within the bounds of the law and provided, of course, that their neighbor remains unharmed. They are free to protect their way of life and sensibilities from being offended. Moreover, our case law recognized the existence of similar rights on the community level. Thus, for instance, the Court permitted administrative authorities to consider factors relating to the protection of the community’s lifestyle and the religious sensibilities of its members in its decision-making process, even absent statutory authorization to this effect.

Case law of this sort sanctioned the closure of a street segment bordering Jerusalem’s central synagogue during the morning hours of the Sabbaths and Jewish holidays in League [1], subsequent to the city’s Transportation Committee’s Chairman’s conclusion that “motor traffic on the streets, on festivals and Sabbaths, disturbs the concentration of the worshippers of the Yeshurun synagogue, preventing them from praying comfortably.” Id. at 2667. Similarly, the Court sanctioned the closure of a road in Bnei-Brak, a city whose population is overwhelmingly Ultra-Orthodox, in Baruch [2]. On the basis of these precedents, one hundred and twenty Jerusalem streets, situated in essentially Ultra-Orthodox areas, were closed-off.

In contrast, in the broad, social-public area, our case law made a point of insisting on the principle that religious considerations may only be taken into account in the context of an arrangement set forth by the legislative branch, or by virtue of a specific empowering statute.

6. For our purposes, even if we were to apply the above stated case law regarding the community level to the Traffic Ordinance [Revised Version], it would not be sufficient to authorize the closure of a central traffic artery for religious reasons, an artery whose closure was deemed, by the Traffic Controller in his letter to the Mayor of Jerusalem, to be “unthinkable, whether on the Sabbath or any other day” from a traffic perspective. A central traffic artery by no means belongs to those residing alongside it. Rather, it serves all the city’s residents, including those taking advantage of their day of rest to visit Jerusalem. Those residing alongside a traffic artery such as Bar-Ilan are to expect that a major public road will not be expropriated for their own private needs, in order to safeguard their sensibilities. Nor can they expect it to be limited in order to preserve their particular lifestyle, absent a statutory provision explicitly instructing otherwise.

7. For the Ultra-Orthodox, seeing Jews traveling anywhere in their cars on the Sabbath, let alone the Holy City of Jerusalem, is most offensive.  Indeed, even the very thought of it offends their religious sensibilities as “all of Israel are each other’s guarantors” Babylonian Talmud, Tractate Nedarim 39a [117]—all Jews are responsible for one another. Needless to say, the offense is further exacerbated when the Sabbath desecration occurs before their very eyes. On the other hand, closing off the main road is liable to offend the secular public’s sensibilities, interfering with their wish to travel freely on Sabbaths and holidays. As noted by Justice Or in Meatrael I [6], at 500:

Extending protection to the feelings of one part of the population is liable to infringe the feelings of another part.

A complex balancing exercise such as this, between the feelings and needs of two segments of the population, must be left to the legislature.

By its very nature, a statute sets out general norms and includes a standard, the product of a balance struck between various and continuing conflicting interests. In the absence of a statutory arrangement regulating the matter at bar, the Minister’s decision in our case may only be characterized as accidental and arbitrary, sparked by violent

 

demonstrations. Nor is it premised on any clear standard. It does not promote equality as it is likely to increase the already significant volume of Sabbath traffic on alternate routes, which for their part house an equally Ultra-Orthodox population. In which way are Bar-Ilan’s residents’ religious sensibilities more worthy of protection than those of their counterparts, living along the alternate routes, which the decision also harms? How shall the authorities that ordered Bar-Ilan’s closure and rerouted Sabbath traffic to the alternate routes react if those living in the latter’s vicinity shall protest against the increase in traffic? The Minister’s decision fails to provide answers to any of these questions.

8. We should not here expand the Traffic Controller’s powers and permit him to resolve this difficult public debate, when doing so entails bypassing the legislative branch and lacks any clear, equality-promoting standard. Such an extension of our existing case law would indeed be a leap I am unwilling to take.

Accordingly, in my opinion, the petitions in HCJ 5016/96, 5025/96 and 5090/96 should be granted and the Court should strike down the decision to close Bar-Ilan Street on Sabbaths and Jewish holidays during prayer times. The petition in HCJ 5435/96 requesting that the closure be broadened should be denied.

Justice Ts. Tal

As President Barak mentioned, the dispute is essentially a social, value-laden struggle; its outer cover alone is that of the law. As such, it does not lend itself to judicial resolution particularly well.  Hence, this Court proposed to establish a public committee, in the hope that it would be capable of finding an appropriate out-of-court solution. This hope, however, was dashed, forcing the Court to rule.

The fact that the petitioners are almost entirely public figures, who have come to fight the battle of those who drive on Sabbaths and holidays, only serves to further emphasize the value-laden nature of this dispute. Thus, on the one hand, there are the residents of the neighborhoods adjacent to and surrounding Bar-Ilan Street, for whom the phenomenon of motor traffic on the Sabbath is like a dagger thrust into their heart. On the other hand are the petitioners, who are concerned about their freedom of movement and freedom from religious coercion.

In all innocence, I assumed that public persons of the highest rank, like the petitioners, would be most sensitive and tolerant to the plight of the local residents and would not insist on their right to violate the Sabbath in the heart of these neighborhoods, before the local residents’ very eyes, and those of their children.

After all, the Minister’s decision, both in its original form according to the Sturm Committee and in its final form in accordance with the Tzameret Committee, was not to close the road for the entire day.  Instead, the road would only be closed for a few hours, when the intensity of the affront to the residents' sensibilities was at its peak.  On the face of it, it would seem that the petitioners themselves ought to have regarded this decision as striking a proper balance between their right to use the road on the Sabbath, and the right of the local population to a respite from the terrible defilement of all that is holy to them, for at least a few hours of the day.  Furthermore, even during the hours during which the road was to be closed, motorists would have at their disposal alternate roads, which do not lengthen their travel time by more than a minute or so.  It would seem to me that the most elementary of manners, together with a level of tolerance befitting public figures, would have dictated this solution.  

Unfortunately, the voices of discord have prevailed, sounding furiously in our midst.

At this juncture I will also allow myself to criticize the violence that occurred during the demonstrations on Bar-Ilan Street. Indeed, I believe that it was precisely the violent actions of some—perhaps a very small minority—of the Sabbath-observing public, that hardened the hearts of the petitioners and sealed their ears from hearing the honest cry of the true Sabbath. This is not the way of the Torah—“Her ways are ways of pleasantness, and all her paths are peace." Proverbs 3:17 [118]. Stoning motorists is in itself a desecration of the Sabbath, and can very well endanger the motorists’ lives.

Conceivably, the petitioners too might have seen the justice of the balance reflected in the Minister’s decision, were it not for the violence and the riots.

Even so, given the gravity of the damage caused to the local residents’ lifestyle and sensibilities, I would have expected people of such merit to display understanding and tolerance.

2.   An additional comment regarding the Jewish Law aspects of the issue is appropriate. Just as the dispute is essentially not a legal one, it is by no means clear to me that the Minister’s position is grounded in Jewish Law.  For if the closing of the road on the Sabbath, albeit partially, involves lengthening motorists’ driving time, thereby increasing the amount of time during which the Sabbath is desecrated, I have my doubts as to whether Jewish Law would endorse such a proposal. This was also the reason for the proposed compromise offering to close Bar-Ilan Street in exchange for the reopening of Yam Suf Street. If closing Bar-Ilan involves desecrating the Sabbath in any case, it makes no difference which alternate road is selected. In such a case, the detour which leads to greater social consensus is preferable to merely closing Bar-Ilan Street.  It is a pity that this proposal, which the petitioners accepted, was rejected, of all people, by the Minister and the religious sector.

3. Unfortunately we did not succeed in achieving a tolerance-based resolution of the dispute.  The petitioners claimed that they were prepared to display tolerance, had “the other side” done the same. My colleague, President Barak, has already responded to this claim, in para. 103 of his judgment:

To my mind, it is incumbent upon us to be consistent in our understanding of democracy. According to the democratic perspective, the tolerance that guides society’s members is tolerance of everyone—even towards intolerance, as I wrote in HCJ 399/85 supra. [25], at pp. 276-277:

The democratic regime is based on tolerance…tolerance of our fellows’ deeds and views. This includes tolerance of those who are themselves intolerant. Tolerance is the force that unites us and permits co-existence in a pluralistic society such as ours.

It is incumbent upon us to be tolerant even of those who are intolerant of us, due to the fact that we cannot afford to be otherwise. Because if we are not tolerant of the intolerant we shall undermine the very basis of our collective existence, premised on a variety of opinions and views, including those that we disagree with, and including the view that tolerance is not mutual.

Moreover, the “tolerances” here are not equivalent. The “tolerance” involved in the slight inconvenience caused by a detour cannot be compared to the “tolerance” required to withstand the fatal blow dealt the Holy Sabbath and the local population’s way of life. To better illustrate this point, I will risk using an extreme example, but as is the way of any caricature, it is purposely exaggerated in order to emphasize its point.  I recall the poem of Heinrich Heine in which Jacob says to Esau (freely translated):

For thousands of years we have tolerated one another in brotherhood; you tolerate the fact that I breathe, and when you rage, I tolerate your fury.

4.   We were not so fortunate as to see the matter resolved the way of tolerance. We must therefore assess the issues from a judicial perspective. My colleague, the Honourable President, praises the Sabbath, to the extent of saying that the Sabbath:

It is a cornerstone of the Jewish tradition and a symbol, an expression of the Jewish message and the character of the Jewish people. Deprive Judaism of the Sabbath, and you have deprived it of its soul

These comments are well said and worthy of their author. But, in the President’s eyes, the Sabbath conflicts with freedom of movement, which in his view is a derivative of human dignity.  I beg to differ. While freedom of movement is indeed a basic right, it is, in my opinion, not included in the Basic Law: Human Dignity and Liberty.  There are important rights which were not enshrined in the Basic Law, and not by inadvertence. In my opinion, great caution ought to be exercised when attempting to read rights, which are not expressly mentioned, into the Basic Law. The Supreme Court of the State of Israel protected basic rights long before there was a Basic Law, and will presumably continue to do so in the future.

Freedom of movement is indeed one of the most crucial freedoms, even if not derived from Human Dignity.  Even so, like almost all other freedoms, freedom of movement is relative rather then absolute.  A mere glance shall reveal how this right is circumscribed in all places, at all times, in accordance with the needs of the place and the time. The Sabbath, on the other hand, in the view of  “the Nation that Sanctifies the Seventh Day,”[1] is almost an absolute value, superceded only by considerations relating to the saving of a life, or the fear of endangering lives. I will limit myself to only a few examples:

The Sabbath is an “Eternal Covenant” and an “Eternal Sign” between God and the Jewish People. See Exodus 31:16-17 [119]:

And it shall come to pass, if ye diligently hearken unto Me…[to] hallow the sabbath day, to do no work therein; Then shall there enter into the gates of this city kings and princes sitting upon the throne of David, riding in chariots and on horses, they, and their princes, the men of Judah, and the inhabitants of Jerusalem: and this city shall remain for ever…But if ye will not hearken unto me to hallow the sabbath day, and not to bear a burden, even entering in at the gates of Jerusalem on the sabbath day; then will I kindle a fire in the gates thereof, and it shall devour the palaces of Jerusalem, and it shall not be quenched.

Jeremiah 17: 24-27 [120]. The other prophets also rebuked the nation in respect of the Sabbath. See Ezekiel 20 [121]; Amos 8 [122]; Nehemiah 9,10,13 [123]. In the words of the Talmuds: “Great is the Sabbath, for it is equal to all of the commandments." Jerusalem Talmud, Tractate Brachot 1:8 [124] and “Jerusalem was destroyed only because of the Sabbath was desecrated therein." See Babylonian Talmud, Tractate Shabbat 119b [125].

The Sabbath’s supreme value is not limited to the religious sphere. It also also extends to the national and universal planes. In the words of Ahad Ha’Am, in Al Parashat Derachim, part 3, at 30:

Whoever feels an authentic connection with the life of the Jewish people throughout the generations, cannot conceive of the Jewish people without the Sabbath. One could say without any exaggeration that, more than the Jewish people have kept the Sabbath, it was the Sabbath that kept the Jewish People.

See also The Book of the Sabbath 10-11 (1934) [126]:

The Sabbath is the greatest creation of genius of the Jewish spirit and anyone who violates it, has harmed the nation’s very heart.

The very division of the week into seven days, universally accepted, though it has no basis in astronomy, is evidence of the Sabbath's antiquity and its universality, as remarked by Rabbi Yehuda Halevi. I would also refer to the important book of Prof. Abraham Joshua Heschel The Sabbath: Its Meaning for Modern Man (1951) [127].

Consequently, “freedom of movement,” which is an important basic right, is confronted by the “Holy Sabbath,” which is an almost absolute obligation upon the Jewish people.

5. Actually, there is no conflict here between “freedom of movement” and the Sabbath. Nobody, and certainly not the Minister of Transport, is attempting to negate or deny the petitioners, or any other person, this freedom. The confrontation is between a slight impingement upon the freedom of movement and that of a mortal wounding of the feelings and way of life of the local population.

And it is in this context that I must take issue with my colleague, the President, who places “individual rights” on a higher plane than injury to a person’s feelings. In my opinion, there is no place for this a priori determination. In each and every case, the right must be weighed against the depth of the feeling.  The scale is both social and value-laden. Each person, every population, possesses a system of rights and sensitivities.  There are cases in which individuals, or even the public at large, will impute greater weight to feelings than to rights. What is patriotism if not a feeling? What are love, hate, brotherhood, neighborliness, aesthetics, art, and poetry if not feelings? During its entire history, our nation has proved that it is prepared to sacrifice its most basic right, the right to life, on the altar of the feeling of sanctity of the Sabbath and the commandments. “Why are you going out to be stoned? ….for I kept the Sabbath.” See Midrash Leviticus Rabbah 32:1 [128].

Furthermore, as stated, the holiness of the Sabbath and the intensity of the affront to the feelings of the local population are confronted only by a measure of inconvenience in exercising the right of the freedom of movement.

6. My colleague, Justice Or, reminded us that freedom of religion also entails freedom from religion. The question, however, does not even arise. The Minister is not, Heaven forbid, attempting to force the petitioners to observe the Sabbath.  They are free to travel on the Sabbath as they please, subject to a minor limitation during certain hours.

7. In light of the above, to the extent that our concern is with those using Bar-Ilan Street for transportation alone, I would not only dismiss the petition, but grant the petition of the Association for the Rights of the Religious Community in Israel and instruct that the Bar-Ilan Street be closed throughout the Sabbath. To this effect, let me mention that within the compromise proposal, where I suggested that Yam Suf Street be reopened in return for Bar-Ilan Street’s closure, the petitioners were prepared to have Bar-Ilan Street closed throughout the entire Sabbath.

8.   We are therefore left with the problem of the local residents who do not observe the Sabbath.

To my mind, the petition of Ms. Avinezer does not pose any problem. As noted, the commandment of the Sabbath always gives way to considerations of saving lives or to counter the threat of such situations arising.  Thus, as a nurse who works in a hospital and therefore inevitably deals with saving lives, Ms. Avinezer’s vehicle, bearing the appropriate markers, will be able to come and go unhindered, like any other security and emergency vehicle. Indeed, according to the Minister’s decision the “closure" will be effected by way of signposts—not roadblocks.

As for the petitioner Mr. Gabay, who is physically handicapped and requests to visit his parents who live on David Street on the Sabbath, he will be able to do so during the hours in which the street is open as per the Minister’s decision.  Although this may pose a slight inconvenience, as he may have to change his schedule slightly, such an inconvenience is trivial with respect to the matter at hand.

It seems to me that this also serves to answer the plight of the other secular residents. In other words, even if such people will have to limit themselves during the hours that the closure is imposed, the restriction is a relatively minor one, which in the circumstances is not unreasonable. After all, if we accept to take alternate routes and bear temporary restrictions for various other reasons, why should we be unwilling to subject ourselves to similar limitations for the sake of the Sabbath?

It should be recalled, in this context, the brief that was submitted by Advocate Simcha Meron. There, it was claimed that petitioners searched, but could find no secular residents in the area along Bar-Ilan St. This affidavit was never contradicted. And it is quite plausible. Thus, for instance, a claim that no secular people reside in the neighborhood of Mea Shearim would be believed. It would seem that the areas under discussion too have also gone through this process of “natural selection” of sorts, whereby the neighborhood remains overwhelmingly Ultra-Orthodox. My colleagues fear that perhaps there are secular residents who do not dare show themselves for fear of repercussions.  We, however, are a Court that can only rule on the basis of the evidence before it. A decision cannot be based upon fears and conjectures.  The fact is that the two private petitioners, Avinezer and Gabay, were not intimidated and did come forward.

Rather than dwelling on the possibility of there being silent secular residents, it is incumbent upon the Court to rule according to the certainty of the existence of thousands of offended and wounded Ultra-Orthodox residents.

The very volume of traffic on the street even on the Sabbath, estimated at about 13000 vehicles, puts to rest the fears of my colleague, Justice Or, that numerous drivers refrain from using the road on the Sabbath, for fear of violence. While I am prepared to assume that there are such people, I also believe that there are well-mannered, sensitive drivers who refrain from driving on the road out of good manners, not out of fear. The Court, however, can only base its decision on the facts as they are presented to it, not on speculation—and the fact is that thirteen thousand drivers are not afraid to drive down Bar-Ilan.

If we examine the Minister’s decision in terms of his exercise of discretion, then the words of this Court, in HCJ 4769/90 Zidan v. Minister of Labor and Welfare [84], with regard to secondary legislation, are appropriate:

In all that regards the exercise of judicial review respecting the reasonableness of secondary legislation, the case law has developed rules which serve as a brake and guarantee against excessive judicial intervention regarding the validity of legislation. These rules are based on principles of judicial policy aimed at defending legislative norms that were prescribed by the administrative authority by virtue of their prima facie powers.

A well-known rule is that the Court will not interfere with the discretion given an administrative authority, nor will it put itself in the shoes of that authority, unless the unreasonableness goes to the very heart of the matter and where it is almost certain that according to a correct measure of reasonableness the authority could not have decided as it did. In such instances, it is incumbent on the Court to show restraint and not put itself in a situation wherein it effectively replaces the administrative discretion with its own.  It has therefore been held that only extreme unreasonableness will warrant judicial interference with the validity of secondary legislation.

9. While my six colleagues are all of the opinion that the orders nisi should be made final, three of them—Justices Or, Cheshin and Dorner—feel that they must be made unconditionally final. In other words, in their view, the orders ought to be made absolute even if the local secular residents in question suffer no damage as a result of the closure. The other three judges—President Barak, Deputy President Levin and Justice Mazza—are also of the opinion that the orders must be made final, but they have left the Minister the option of first verifying the matter of the local secular residents. For their part, they are prepared to uphold the Ministers decision only with respect to the “traveling motorists.”

10. If my opinion were to be accepted, the Court would grant the Association’s petition in HCJ 5434/96 and, a fortiori, dismiss all of the other petitions. 

However, since mine remains a lone voice, and in order not to render the Minister’s decision unsalvageable in the event that a solution to the plight of the local secular residents is found, if such a plight does in fact exists, I will add my consent to the President’s judgment, for pragmatic reasons only.

*******

In consequence, by majority opinion, with Justice Tal dissenting, the Court has decided to dismiss the petition in HCJ 5434/96  and to make the orders nisi in HCJ 5016/96, 5025/96 and 5090/96  absolute, in the sense that the Minister’s decision to close Bar-Ilan Street, albeit partially, is null and void.

Bearing in mind the contents of section 10 of Justice Tal’s judgment, we hereby decide, by a majority opinion, with Justices Or, Cheshin and Dorner dissenting, that the operative part of our decision is contained in paragraph 106 of the President’s judgment.

Under the circumstances, no order is made for costs.

13 April 1997.       

 

[1]  From the Sabbath prayers.